The John Marshall Law Review
Volume 30 | Issue 2
Article 3
Winter 1997
Habeas Corpus and the New Federalism after the
Anti-Terrorism and Effective Death Penalty Act of
1996, 30 J. Marshall L. Rev. 337 (1997)
Marshall J. Hartman
Jeanette Nyden
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Marshall J. Hartman & Jeanette Nyden, Habeas Corpus and the New Federalism after the Anti-Terrorism and Effective Death Penalty
Act of 1996, 30 J. Marshall L. Rev. 337 (1997)
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ARTICLES
HABEAS CORPUS AND THE NEW
FEDERALISM AFTER THE ANTITERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996
MARSHALL J. HARTMAN* & JEANETTE NYDEN**
INTRODUCTION
On February 3, 1997, the House of Delegates of the American
Bar Association passed a resolution urging states not to carry out
the death penalty in their jurisdictions until the imposition of the
death penalty is carried out in a manner which would "ensure that
death penalty cases are administered fairly and impartially, in accordance with due process, and minimize the risk that innocent persons may be executed."' The authors of the report accompanying
this resolution pointed to the passage of the new AntiterrorismTerrorism and Effective Death Penalty Act of 1996 ("AEDPA") which
"significantly curtail[s] the availability of federal habeas corpus to
death row inmates" as one of the most recent and dramatic moves by
*
Deputy Defender, Capital Litigation Division, Office of the Illinois Ap-
pellate Defender. Former Public defender, Lake County Public Defender's
Office. Former National Director of Defender's Services for the Legal Aid Defender's Association. Former visiting professor of criminal justice, University
of Illinois (Chicago). Mr. Hartman is currently an adjunct professor at law at
IIT Chicago-Kent College of Law.
** Assistant Public Defender, Cook County Public Defender's Office.
The authors wish to acknowledge the contributions of Andrew Scott, Attorney at Law, Chicago, Illinois to the completion of this article. In addition,
the authors wish to thank John Blume and Mark Olive of the Habeas Project
of the Administrative Office of U.S. Courts, and George Kendall, of the Legal
Defense Fund, Inc., for their timely and up to date summaries of current cases
interpreting the AEDPA, and also Alan Freedman for his timely news bulletins on the latest developments in habeas corpus relating to the new Act. The
authors also wish to acknowledge the efforts of Nancy Albert-Goldberg for her
review and comments on this article. Finally, the authors would like to thank
Professor Ralph Ruebner of The John Marshall Law School for his ideas and
critical comments.
1. AMERICAN BAR ASSOCIATION REPORT WITH RECOMMENDATIONS ON
DEATH PENALTY IMPLEMENTATION,
app. 1 (1997).
The John MarshallLaw Review
[30:337
Congress.2 Therefore, the passage of the AEDPA requires the ABA
to take action at this time.3
That the ABA would be so concerned about the passage of the
AEDPA as to propose a moratorium on the death penalty was certainly not anticipated by President Clinton when he signed this bill.
In his statement dated April 24, 1997, accompanying the bill, the
President stated:
Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut
meaningful Federal habeas corpus review. I have signed this because I am confident that Federal Courts will interpret these provisions to preserve independent review of Federal legal claims and
the bedrock constitutional principle of an independent judiciary.4
This Article explores some of the questions raised by the dichotomy of views expressed by President Clinton and the American
Bar Association. Specifically, Part I provides an overview of the history and development of habeas corpus in this country. Part II examines the implications of habeas corpus on our federalist system
and discusses the changes in the scope of the "Great Writ" over time.
Finally, Part III investigates the provisions of new AEDPA. In discussing the AEDPA, this Article reviews its most salient provisions
and analyzes their interpretations by the Circuit Courts of Appeal,
particularly the Seventh Circuit Court of Appeals.
I.
BACKGROUND OF THE "GREAT WRIT"
On April 24, 1996, the 104th United States Congress officially
launched the new era of federal habeas corpus when it passed the
AEDPA.5 The "Old Habeas," as many now affectionately view it, had
already undergone numerous changes since its inception in English
common law and its incarnation in Article I, § 9 of the United States
Constitution.
In order to understand the implications of the AEDPA, or the
"new habeas" bill, one must understand the unique context in which
habeas relief was viewed in our American political scene. Under
English common law, the writ of habeas corpus allowed anyone imprisoned by a court, a governmental body, or the King himself, to be
brought upon demand to the judges of the King's Bench without delay.6 However, its American counterpart was much more involved.
2. Id. at 1.
3. Id.
4. Statement by President Clinton upon signing S. 1963, 32 WKLY. COMP.
PRES. Doc 719 (Apr. 29, 1996).
5. Antiterrorism And Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (to be codified in scattered sections of 28
U.S.C.).
6. Marshall J. Hartman & Shelvin Singer, Requiem for Habeas Corpus,
THE CHAMPION, Mar. 1994, at 12.
1997]
Habeas Corpus and the AEDPA
The American habeas was an essential element of the political compromise engendered by the "Anti-Federalist State's Rights vs. Federalist Strong Central Government" conflict and tensions which began at the founding of our nation and continues throughout our
nation's history.
In the early days of the Republic, the colonists viewed the writ
of habeas corpus, like the Bill of Rights, as a protection for citizens
only against the new federal government. The fear of the populace
was that the new "King George" Washington would not respect the
colonists' rights any differently than the old "King George" of England. Conversely, the colonists had no fear that their states might
abuse their power. Accordingly, the Judiciary Act of 1789 made the
writ available only to federal prisoners and prohibited any inquiry
by the federal courts into the propriety of state custody.7
By 1867, concern arose for the protection of American citizens
from their state governments in the aftermath of the Civil War
when some Southern legislatures were restricting the rights of black
people. As a result, the reach of the writ was extended to state prisoners as well.8 The fear of many in Congress and many northerners,
that southern legislatures and courts would not treat their former
slaves fairly, was also expressed in the passage and adoption of the
Thirteenth, Fourteenth, and Fifteenth, "anti-slavery" Amendments.
Included in the Fourteenth Amendment was the provision that "no
state" could deprive its citizens of due process or equal protection of
the laws. 9 The Framers designed this passage to insure that all
states complied with the Constitution and the Bill of Rights, so that
black as well as white citizens were afforded the same protection
under the law.'0 The extension of habeas corpus jurisdiction to state
prisoners was part and parcel of that concern and of the perceived
need that the federal courts should be able to protect Americans sentenced by state courts as well.
However, until the Warren Court of the 1960s, the U.S. Supreme Court refused to extend habeas corpus to the states. Prior to
the Warren Court decisions, it was axiomatic that every state was
supreme in the exercise of its police power, and that there were "fifty
criminal justice laboratories" in these United States to administer
the criminal laws. During the 1960s, in a series of criminal decisions, the Warren Court incorporated most of the provisions of the
Bill of Rights, previously only held applicable in federal courts, and
applied them to the states via the Fourteenth Amendment." These
7. Judiciary Act of 1789, ch. 20, § 14.
8. Habeas Corpus Act of 1867, ch. 28, § 1.
9. U.S. CONST. amend. XIV.
10. SHELVIN SINGER & MARSHALL J. HARTMAN, CONSTITUTIONAL CRIMINAL
PROCEDURE HANDBOOK § 1.2 (1986); Hartman & Singer, supra note 6, at 12.
11. Hartman & Singer, supra note 6, at 13; see, e.g., U.S. CONST. amend. VI
(providing the Rights of Confrontation, Jury Trial, Counsel, Speedy Trial, and
The John Marshall Law Review
[30:337
"Bill of Rights" decisions arose from the concern that the Warren
Court had for the rights of indigent defendants, minors, and the disadvantaged. In addition, these decisions began to construct a uniform code of criminal procedure applicable to all Americans, whether
they were in state or federal court.
II. THE EVOLUTION OF THE WRIT OF HABEAS CORPUS
JURISPRUDENCE
This Part tracks the development of habeas corpus jurisprudence through three eras of the United States Supreme Court.
First, this Part examines the Warren Court decisions, which dramatically shifted the balance of power with respect to habeas corpus
law from the states to the federal government. Next, this Part reviews the Burger Court decisions and focuses on the retreat from a
strong federal presence in habeas corpus law. Finally, this Part discusses the Rehnquist Court decisions and explores the Court's reduction in the reach of the "Great Writ."
A. The Warren Court Decisions
In addition to the "Bill of Rights" cases decided by the Warren
Court, the United States Supreme Court in 1963, handed down
three landmark decisions dealing with the "Great Writ" of federal
habeas corpus: Fay v. Noia,2 Townsend v. Sain,1 and Sanders v.
United States.4 In the aggregate, these cases cut through the procedural thicket of state comity and state concerns about finality, and
mandated federal relief from state court decisions which were in
violation of the Federal Constitution or the Bill of Rights. Furthermore, these habeas corpus decisions were consistent with the main
thrust of the Warren Court in the 1960s to insure that the protections of the Bill of Rights were extended to defendants in state
courts as well as to those in federal proceedings.
However, these decisions also affected the balance of power between state and federal governments in the enforcement of the
criminal laws. As a result of these Warren Court decisions, the notion that there were "fifty laboratories" to experiment with the
rights of defendants died, and the balance of power with respect to
the method of enforcement of these laws shifted dramatically to the
federal government. In discussing the Warren Court decisions, this
Compulsory Process); U.S. CONST. amend. V (guaranteeing the privilege
against self-incrimination and the prohibition against double jeopardy); U.S.
CONST. amend. IV (enforcing the prohibition against unreasonable searches
and seizures through the Exclusionary Rule); U.S. CONST. amend. VIII
(prohibiting Cruel and Unusual Punishment).
12. 372 U.S. 391 (1963), overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992).
13. 372 U.S. 293 (1963).
14. 373 U.S. 1 (1963).
Habeas Corpus and the AEDPA
1997]
Section focuses on three major principles of federal habeas jurisprudence: 1) the standard for determining state procedural default; 2)
the criteria for filing successor or "second" petitions; and 3) the circumstances in which federal evidentiary proceedings may be held.
In Fay, the defendant, charged with felony murder, objected to
the admission of his confession at trial on grounds that it had been
coerced. 5 When the court denied the motion, he failed to perfect a
timely appeal of his conviction."6 The defendant then filed a federal
habeas petition. 7 However, the federal district court denied relief on
the grounds that the failure to file a timely appeal in the state reviewing court precluded the federal court from reviewing the petition." The district court reached this decision even though the State
conceded that the confession had been coerced and the cases of two
co-defendants had been overturned on this same ground. 9 The
United States Supreme Court reversed the lower court's decision. 0
Justice Brennan, speaking for a majority of the Court, stated that
the procedural failure of the petitioner to fie his appeal could not
deny him federal habeas relief unless he deliberately bypassed state
procedures and intentionally gave up an opportunity for state review. 2' Holding that the defendant's actions did not constitute such
a "deliberate bypass," Justice Brennan reasoned that "the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings. " '
In Townsend, the Supreme Court applied the reasoning of Fay
v. Noia to the question of when habeas petitioners were entitled to
evidentiary hearings in federal court.2 ' The Court held that habeas
petitioners were entitled to a complete evidentiary hearing on their
constitutional claims in federal court, unless they had "deliberately
bypassed" the orderly procedure of the state courts.2
Similarly, in Sanders, the Warren Court remained consistent
with its holding in Fay v Noia.2' However, the Court went further in
Sanders and applied the "deliberate bypass" test to a case where
counsel lacked factual or legal knowledge of a specific constitutional
claim when the petitioner's first habeas corpus petition was fied.
The Court held that relief would be granted to a defendant who fies
a successor petition raising a new claim, unless counsel possessed
15.
16.
17.
18.
19.
372 U.S. at 394.
Id.
Id. at 396.
Id.
Id. at 398.
20. Id. at 439.
21. Id. at 438-39.
22. Id. at 438.
23. Townsend v. Sain,372 U.S. 293 (1963).
24. Id. at 317.
25. Sanders v. United States, 373 U.S. 1, 18 (1963).
The John Marshall Law Review
[30:337
knowledge of the claim at the time he filed the first petition and deliberately failed to raise the claim."6
In any event, the message was clear after these three historic
decisions. The federal government would extend constitutional protections to all citizens in state courts as well as in federal courts, and
its preferred mode of execution was through the writ of habeas corpus. Although the Burger Court and the Rehnquist Court later
modified the holdings of these three cases, the essential thrust of
these cases, that the federal courts would monitor violations of federal constitutional rights in state courts, remained unaltered.
B. Retreat Under the Burger Court
In 1977, the Burger Court somewhat altered the clear message
sent to the states during the Warren Court era. In Wainwright v.
Sykes, 7 rather than applying the "deliberate bypass" test of Fay v.
Noia and its progeny, the Burger Court "substituted the 'cause and
prejudice' test to resolve questions of state procedural default." 8 In
order to obtain habeas relief, the "cause and prejudice" test requires
the petitioner to show "cause" as to why he did not raise a constitutional claim properly in the state court, as well as the "prejudice" resulting to him from the alleged constitutional violation.2 In Sykes,
the defendant failed to object to the introduction of his confession at
trial, in which he stated that he shot the deceased." The state supreme court held that the issue was waived for review since state
law required a contemporaneous objection as a prerequisite for appeal. 3 Viewing the defendant's failure to object as an independent
state ground for denying relief, the United States Supreme Court
overruled the Fay v. Noia test.2 Although this decision changed the
test to obtain federal relief, the Burger Court did not alter the
authority of the federal courts to monitor state proceedings.
Thereafter, in a series of cases decided from 1991 to 1993, the
Rehnquist Court further reduced the reach of the "Great Writ" by
modifying the 1963 trilogy. Nonetheless, it did not abolish the
power of the federal court to monitor state criminal decisions via the
"Great Writ."
26.
27.
28.
29.
30.
31.
32.
Id.
433 U.S. 72 (1977).
Hartman & Singer, supra note 6, at 11 (citing Sykes, 433 U.S. at 90-91).
Sykes, 433 U.S. at 90-91.
Id. at 75.
Id.
Id. at 87-88.
Habeas Corpus and the AEDPA
1997]
C. Retrenchment Under The Rehnquist Court
1. State ProceduralDefault and the Doctrine of Independent State
Ground
In Coleman v. Thompson,33 the Rehnquist Court reexamined
the doctrine of Fay v. Noia. In Coleman, defense counsel filed his
appeal from the denial of petitioner's post conviction petition three
days late.' The Virginia Supreme Court dismissed the petition, and
the United States Supreme Court affirmed. 5 Justice O'Connor,
writing for the majority, stated that it was clear from the record that
the dismissal by the Virginia Supreme Court was based on state
procedural grounds, and therefore the issue was foreclosed from federal habeas corpus review.36 Distinguishing the ruling in Fay v.
Noia, handed down thirty years earlier, the Court made it clear that
"this Court will not review a question of federal law decided by a
state court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to support
the judgment."37 Thereafter, the defendant was executed.
2. EvidentiaryHearingsin FederalCourt
In Keeney v. Tamayo-Reyes,"8 the Court considered the validity
of the test enunciated in Townsend v. Sain, which established the
standard for holding evidentiary hearings in federal court."9TamayoReyes, a Cuban immigrant, was charged with murder after he
stabbed a man in a bar." He was provided with defense counsel who
suggested that he plead guilty to manslaughter.4' Since the defendant spoke little english, an interpreter explained his rights and the
consequences of his plea to him.' The court accepted his plea to
manslaughter.'
After he found himself in prison, Tamayo-Reyes filed a collateral attack in state court on the grounds that he did not understand
the mens rea element of manslaughter." A hearing was held, but
the petitioner's counsel did not ask him whether his interpreter had
33.
34.
35.
36.
37.
501 U.S. 722 (1991).
Id. at 727.
Id. at 729.
Id. at 750.
Id. at 729.
38. 504 U.S. 1 (1992).
39. The standard enunciated in Townsend required an evidentiary hearing
in the district court, unless the petitioner had "deliberately bypassed" the or-
derly procedures of the state courts. Id. at 4 (citing Townsend v. Sain, 372
U.S. 293 (1963)).
40.
41.
42.
43.
44.
Id. at 3.
Id.
Id.
Id.
Id.
The John Marshall Law Review
[30:337
translated "manslaughter" for him.' Nor did his counsel employ a
language expert to assess the interpreter's performance, or whether
Tamayo-Reyes could understand the translation.'8 The only evidence the counsel introduced, other than the petitioner's testimony,
was an affidavit by the interpreter stating that he had translated
manslaughter as "less than murder."7 The state court dismissed the
petition.'8 The state court of appeals affirmed, and the state supreme court denied review.9
Tamayo-Reyes then filed a petition for a writ of habeas corpus
in federal district court.5° He contended that the material facts concerning the translation were not adequately developed at the state
court hearing and sought a federal evidentiary hearing, citing
Townsend v. Sain." The district court denied relief; however, the
Ninth Circuit Court of Appeals reversed, holding that the failure to
develop the critical facts was due to the negligence of defense counsel.' The Ninth circuit then went on to hold that the counsel's negligence did not constitute a "deliberate bypass" by the petitioner.'
Therefore, under the Townsend test, Tamayo-Reyes was entitled to
an evidentiary hearing in federal court.
The United States Supreme Court reversed the Ninth Circuit,
holding that the "deliberate bypass" standard of Fay v. Noia and
Townsend v. Sain was no longer the correct standard for determining whether a petitioner who fails to develop a material fact in state
court is entitled to an evidentiary hearing in federal court.5' Instead,
the Court stated that the proper test was the "cause and prejudice"
test articulated in Wainwright v. Sykes, and held that counsel's negligence did not satisfy the "cause and prejudice" test.'
In overruling that portion of Townsend v. Sain, the Court held
that federal courts should apply the same standard that courts used
to determine the claims of a petitioner who has procedurally defaulted in state court.5" By utilizing the "cause and prejudice" test in
Wainwright v. Sykes, there would be uniformity in both situations.57
However, it is important to note that this case only affected hearings
that were required under Townsend v. Sain and did not limit the
power of a federal court to hold a evidentiary hearing at its discre45. Id. at 13.
46. Id.
47. Id.
48. Id. at 4.
49.
50.
51.
52.
Id.
Id.
Id.
Id. at 4.
53. Id.
54. Id. at 5.
55. Id. at 8.
56. Id.
57. Id. at 19.
Habeas Corpus and the AEDPA
1997]
tion.
3. Successor Petitions
In McClesky v. Zant,5 the Court held that the standard for determining whether a defendant could file a "second" or "successor"
federal habeas corpus petition should also be consistent with the
Sykes test.' The police charged McClesky, along with other individuals, in the armed robbery of a Georgia furniture store man in
1978, and the murder of an off duty police officer who entered the
store as McClesky was making his escape. 6° At first, McClesky confessed to the robbery, but later repudiated his confession at trial and
denied all involvement.6 While being held in the county jail, an inmate named Evans was placed in the cell next to McClesky, and began asking McClesky questions about the crime.62 At trial, Evans
testified that McClesky confided in him and confessed to the shooting." The court convicted McClesky and sentenced him to death."
In January of 1981, after his direct review was exhausted,
McClesky fied a state habeas corpus petition.'
In his petition,
McClesky alleged, inter alia, that the police placed the inmate next
to him for the sole purpose of extracting a confession from him in the
absence of counsel, and subverted his Sixth Amendment rights in
violation of Massiah v. United States." The court denied his petition, as he had no proof of his allegations.67 Thereafter, in December
of 1981, McClesky filed a federal habeas corpus petition alleging
other grounds for barring the testimony of Evans, but omitted the
specific Massiah claim." The federal court denied the petition.6
Six years later, in 1987, McClesky's counsel received a copy of a
twenty-one page statement by Evans, given to the Atlanta police
prior to trial.7 6 This statement arguably demonstrated that Evans
was working in concert with the police to eavesdrop on McClesky
and obtain admissions from him.7 One month later, McClesky filed
a second federal habeas corpus petition, alleging the Massiah claim
and attaching Evan's statement as proof.7' The district court
58.
59.
60.
61.
62.
63.
499 U.S. 467 (1991).
Id. at 479.
Id. at 470.
Id.
Id.
Id.
64. Id. at 471.
65. Id. at 472.
66. Id. (citing Massiah v. United States, 377 U.S. 201 (1964)).
67. Id.
68. Id. at 472-73.
69. Id. at 473.
70. Id. at 474.
71. Id. at 473-74.
72. Id. at 474.
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[30:337
granted relief; however, the Eleventh Circuit reversed on the
grounds that the filing of the second federal habeas petition constito allege that
tuted an "abuse of the Writ" because McClesky failed
73
constitutional claim in his first habeas petition."
Until McClesky, the test for determining whether a second petition constituted an abuse of the writ depended on whether a claim
was "deliberately abandoned." 7 However, the majority of the Court
overruled Sanders on that issue and substituted the "cause and
prejudice" test in order to be consistent with Sykes."5 Nevertheless,
the Court did not prohibit the filing of "successor petitions" in the
district court, but rather, it merely changed the test
for determining
6
when a constitutional claim is considered waived.
Justices Marshall, Stevens, and Blackmun dissented. In Justice Marshall's view, this case was decided wrongly, since McClesky's counsel satisfied the Sanders "good faith" doctrine and did not
deliberately hold back the claim. 77 The district court found that
McClesky was not aware of the evidence that supported his Massiah
claim when he filed his first petition.78 Under the old "good faith"
standard, a petitioner could have waited to allege the constitutional
violation until after he found evidence to support it.7 9 However, by
applying the new "cause and prejudice" standard, the majority denied relief' 0
The dissent also argued, however, that even under the newly
applied "cause and prejudice" test, the case should have been remanded."' Where, as here, the State's "veil of deception" and refusal
to turn over Evans' statement to counsel interfered with the petitioner's ability to substantiate his Massiah claim, a successive habeas petition should not be barred. 2 The district court found that
the state covertly planted Evans in the adjoining cell.83 Thereafter,
all the government officials counsel interviewed prior to the filing of
the first habeas petition denied any knowledge of the agreement between Evans and the state, including the jailer, the assistant district
attorney, and others." As a result, the dissent contended that it was
73. Id. at 475-76.
74. Id. at 489.
75. Id. at 502.
76. Id. at 496.
77. Id. at 506 (Marshall, J., dissenting).
78. Id. at 476.
79. See 28 U.S.C. § 2244(b)(2)(B) (1994) (authorizing successive petitions
upon the discovery of new evidence); see also Sanders v. United States, 373
U.S. 1 (1963) (setting forth the various factors bearing on a district court's
discretion to entertain successive petitions). Sanders and its progeny seem to
articulate a "good faith" standard. McClesky, 499 U.S. at 509.
80. McClesky, 499 U.S. at 503.
81. Id. at 524 (Marshall, J., dissenting).
82. Id. at 527-28.
83. Id. at 525.
84. Id. at 526.
1997]
Habeas Corpus and the AEDPA
impossible for the petitioner to verify his claim until he received
Evans' statement from the state, six years later. Thus, although the
Burger and Rehnquist Courts retreated somewhat from the grand
principles of the 1963 trilogy of the Warren Court, they did not retreat from the theory that the federal court would continue to
monitor state criminal decisions to determine whether or not federal constitutional rights had been violated.
4.
Retroactivity
Another hurdle erected to habeas relief by the Rehnquist Court
is the jurisprudence of the "new rule." Although at English common
law, all court decisions were retroactive, that has not been the case
in America. The United States Supreme Court has applied various
formulas to determine which decisions should be retroactive. The
latest formula promulgated by the Rehnquist Court is the "new rule"
doctrine. Under the Supreme Court's decision in Teague v. Lane,"
although all decisions of the United States Supreme Court are retroactively applied to cases on direct review, they are not applied to
habeas corpus cases on collateral review, unless the Supreme Court
decision does not constitute a "new rule."8
The question of when a Supreme Court decision announces a
"new rule" of constitutional law appeared simple enough when first
announced, but confounds jurists to this day. In theory, a "new rule"
of constitutional law is announced if the decision was not dictated by
prior precedent existing at the time the defendant's conviction became final, or if the decision broke new ground or imposed a new
obligation on the states or federal government. However, state and
federal courts continue to disagree over the application of this
seemingly clear definition.
87
For example, in Simmons v. South Carolina,
the Supreme
Court held that it was a denial of due process not to inform a sentencing jury in a death penalty case that the defendant would never
be released from prison if they did not impose the death penalty,
where a prosecutor had argued the defendant's "future dangerousness."8 Thereafter, as late as September, 1996, in O'Dell v. Netherland," the Fourth Circuit Court of Appeals split seven to six on the
question of whether Simmons had announced a "new rule," or was
dictated by prior precedent."0 The majority held that it did announce
a "new rule," and therefore was not retroactive to the habeas petitioner.9 1' However, six judges on the Fourth Circuit contended that
85. 489 U.S. 288 (1989).
86.
87.
88.
89.
90.
91.
Id. at 316.
114 S. Ct. 2187 (1994).
Id. at 2198.
95 F.3d 1214 (4th Cir. 1996).
Id. at 1218.
Id. at 1224, 1235-36.
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[30:337
the prior precedents of Gardner v. Florida and Skipper v. South
Carolinadictated the decision in Simmons.9
As conflicting interpretations of what constituted a "new rule"
continued, the doctrine was devastating to prisoners on death row
who used to look forward to the possibility of a new trial when the
Supreme Court would declare a practice of the prosecution or the
police to be unconstitutional."
However, after the doctrine of the
"new rule," an inmate seeking collateral review could no longer reasonably expect relief in his case."
The Seventh Circuit case of Stewart v. Lane" provides a good
example. After the Fourth Circuit handed down the O'Dell decision,
an original petition for habeas corpus relief was filed directly in the
United States Supreme Court on behalf of Illinois death row inmate,
Ray Stewart, the day before his execution.96 The petition noted a
similar fact pattern to that of Simmons and O'Dell, and requested a
stay of Stewart's execution until the Supreme Court decided the issue of whether Simmons promulgated a "new rule" or was retroactive.97 The petition garnered the votes of only two Justices for a stay
of execution, and Stewart was executed at midnight.9 On December
19, 1996, the United States Supreme Court granted a writ of certio92. O'Dell, 95 F.3d at 1257 (Ervin, J., concurring in part, dissenting in
part) (citing Skipper v. South Carolina, 476 U.S. 1 (1986)).
93. See generally Marshall J. Hartman, To Be or Not To Be, A New Rule, 29
CAL. W. L. REV. 53 (1992), reprinted in 16 CRIM. L. REV. 515 (1994).
94. See Butler v. McKellar, 494 U.S. 407, 408 (1990); see also MARSHALL J.
HARTMAN ET AL., COLLATERAL ATTACK: FEDERAL HABEAS CORPUS REVIEW
AND A PRIMER ON POST-CONVICTION IN ILLINOIS, ILL. INST. FOR CONTINUING
LEGAL EDUC., 13-1 (1996).
95. 60 F.3d 296 (7th Cir. 1995).
96. Id. at 298.
97. See Stewart v. Lane, 60 F.3d 296 (7th Cir. 1995). Stewart was convicted of murder and sentenced to death for three murders in Illinois. Id. at
298. His case was litigated at all levels for 13 years. Id. Stewart petitioned
for habeas corpus relief alleging that the trial judge erred when he failed to
instruct the jury that the only alternative to the sentence of death for Stewart
was life imprisonment without the possibility of parole. Id. The district court
denied the writ and Stewart appealed.
In addressing Stewart's claim, the Seventh Circuit first looked to Teague
v. Lane, because Stewart relied on Simmons v. South Carolina. Id. (citing
Teague, 489 U.S. at 316 (1989)). Looking at the law that existed at the time of
Stewart's trial, the Seventh Circuit found that no such rule of criminal procedure existed. Id. at 300. The court then looked at the two narrow exceptions
outlined in Teague in which a defendant may benefit from a retroactively
applied new rule. Id. at 302. The second exception "encompasses 'watershed
rules of criminal procedure implicating the fundamental fairness and accuracy
of the criminal proceeding.'" Id. The court with little discussion dismissed
the notion that Simmons was such a watershed case. Id. at 303. The Court
reasoned that Simmons was not the kind of decision that enforced core rules
of criminal procedure implicit in ordered liberty. Id.
98. In Re Stewart, 117 S.Ct. 31 (1996). Justices Stevens and Breyer would
have granted the stay of execution.
19971
Habeas Corpus and the AEDPA
rarito O'Dell to resolve the question of whether the Simmons doctrine constituted a "new rule" of constitutional law.9 Unfortunately,
that grant of certiorari was too late to save Stewart from execution.
The case of Gary Graham, a Texas death row inmate, similarly
illustrates the impact of the "new rule" doctrine. In his petition for
certiorari to the Supreme Court, Graham attempted to rely on the
Supreme Court's decision in Penry v. Lynaugh."'° In Penry the Supreme Court held that, under the framework of existing Texas law,
the jury was unable to adequately consider evidence of a defendant's
mental retardation and abused childhood.'O In Graham's case, he
alleged similarly that under Texas law, the jury was unable to adequately consider the evidence he introduced at sentencing, relating
to his youth, unfortunate background, and traits of good character."
The Penry holding was based primarily upon two cases: Lockett
v. Ohio"°3 and Eddings v. Oklahoma."° Those cases held that the
sentencing jury was entitled to consider all possible mitigating evidence before making a decision as to life or death." 5 In fact, the
Penry Court stated, "[iut was clear from Lockett and Eddings that a
State could not.., prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or
character or to the circumstances of the offense that mitigate against
imposing the death penalty."'
Since the Court held in Penry that its decision was dictated by
the prior precedents of Lockett and Eddings, Graham argued that
Penry had not enunciated a "new rule," and was therefore applicable
to him.' 7' However, in ruling on Graham's petition for certiorari,
Justice White, speaking for the majority, denied relief."° The question for the majority was whether "reasonable jurists reading the
case law that existed in 1984 could have concluded that Graham's
sentencing was not constitutionally infirm."' 9 The Court held that
reasonable jurists could come to such a conclusion; therefore, the
Court determined that Penry announced a "new rule," and consequently, was not applicable to Graham."0
In sum, the nonretroactivity doctrine of the Rehnquist Court turned out to be yet
another obstacle to prisoners seeking federal relief from their state
99. O'Dell v. Netherland, 117 S. Ct. 631 (1996).
100. Graham v. Collins, 506 U.S. 461, 466-67 (1993) (citing Penry v. Lynaugh, 492 U.S. 302 (1989)).
101. Penry, 492 U.S. at 340.
102. Graham, 506 U.S. at 443.
103.
104.
105.
106.
107.
108.
109.
110.
438 U.S. 586 (1978).
455 U.S. 104 (1982).
Lockett, 438 U.S. at 608; Eddings, 455 U.S. at 117.
Penry, 492 U.S. at 318.
Graham, 506 U.S. at 473-74.
Id. at 463.
Id. at 477.
Id.
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convictions and sentences.
5. HarmlessErrorStandardLower for CollateralReview in
FederalCourt
Another retreat from the grand principles of the 1963 "trilogy"
was the lowering of the standard of harmless error on federal habeas
corpus review in Brecht v. Abrahamson."' In that case, the defendant, Todd Brecht, was charged with the fatal shooting of his
brother-in-law, a local district attorney. 1 2 Brecht was arrested,
given Mirandawarnings and remained silent."' Thereafter, he took
the stand at his trial and stated that the shooting was an accident.""
The state argued to the jury that Brecht's version of what happened
differed from what he had told the police at the time of his arrest,
and that Brecht never advanced that "accident theory" before."'
Brecht was convicted and sentenced to life imprisonment." 6
On appeal, the Wisconsin Supreme Court held that the references to Brecht's failure to tell the police his "accident theory," after
he was advised of his Fifth Amendment right not to speak, violated
his due process rights."7 However, the Wisconsin court affirmed,
holding that this constitutional violation was "harmless beyond a
reasonable doubt."1 8
Brecht then filed a petition for a writ of habeas corpus in the
federal district court."9 The district court granted the petition,
holding that the error was not "harmless beyond a reasonable
doubt.",2 0 The United States Court of Appeals for the Seventh Cir21
cuit reversed the district court and reinstated the conviction.'
However, the Seventh Circuit held that although the proper standard for assessing constitutional errors on direct review was
whether the error was "harmless beyond a reasonable doubt," that
should not be the test for habeas corpus review.' 22 According to the
Seventh Circuit, the proper test for habeas review is the federal
harmless error rule for a non-constitutional error. 13 Under this
framework, the test is whether the violation "had a substantial and
injurious effect or influence in determining the jury's verdict."124
111. 507 U.S. 619 (1993).
112.
113.
114.
115.
116.
117.
Id. at 623-24.
Id. at 624-25.
Id. at 624.
Id. at 624-25.
Id. at 625.
Id. at 626 (citing Doyle v. Ohio, 426 U.S. 610 (1976)).
118. Id.
119. Id.
120.
121.
122.
123.
124.
Id
Id.
Id. at 627.
See id at 626-27 (citing Chapman v. California, 386 U.S. 18, 22 (1967)).
Id. at 627.
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Habeas Corpus and the AEDPA
Here, the Seventh Circuit found that the constitutional violation to
Brecht's due process125rights did not have such an effect or influence
on the jury's verdict.
Brecht then filed a petition for a writ of certiorari in the United
States Supreme Court. 126 The Supreme Court affirmed the Seventh
Circuit's holding. 127 Writing for the Court, Chief Justice Rehnquist
made a clear distinction between the standard for harmless error on
habeas corpus review and the standard on direct review, based upon
the function of each." He stated that direct review was the principal avenue for challenging a conviction, while habeas review was a
secondary avenue and was designed to guard against extreme malfunction of the system. 29 Therefore, Rehnquist insisted that "an error that may justify reversal on direct appeal will not necessarily
support a collateral attack on a final judgment.""0
Rehnquist concluded that state courts had the qualifications to
decide whether an error in a criminal case had a harmful effect upon
the petitioner's right to due process."' Therefore, Rehnquist stated
that it made no sense to have the federal courts review the process
with the same harmless error standard."' Undermining the States'
ability to decide upon the prejudicial effects of trial errors could also
lead to "the frustration of society's interest in the prompt administration of justice," and its interest in finality. 133 Rehnquist reasoned
further that there was a cost to society when cases are reversed on
collateral review."4 Usually in a habeas proceeding, it is much later
than the initial proceeding, it is harder to find witnesses, their
memories are foggy, and it is more difficult for the state to prove its
case. Therefore, according to Rehnquist, it was legitimate to make
the harmless error standard more onerous on collateral review given
the social costs involved. Since the Supreme Court did not conclude
that the error "had a substantial and injurious effect or influence in
determining the jury's verdict," it affirmed the Seventh Circuit's decision. 135
These pronouncements of Chief Justice Rehnquist foreshadowed the arguments of the 104th Congress when it passed the new
habeas legislation on April 24, 1996. Concerns about finality of
judgment, delay, proper use of judicial resources, states' rights and
societal cost underlay the passage of AEDPA.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
Id. at 626.
Id. at 627.
Id.
Id. at 622-23.
Id. at 633.
Id. at 634 (citing United States v. Frady, 456 U.S. 152, 165 (1982)).
Id,at 636.
Id.
Id. at 637 (citing United States v. Mechanik, 475 U.S. 66, 72 (1986)).
Id.
Id. at 639.
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III. CHANGES UNDER THE ANTITERRORISM-TERRORISM AND
EFFECTIVE DEATH PENALTY ACT
This Part first analyzes the changes to habeas corpus relief
made by key provisions of the new AEDPA, as recently interpreted
by the United States Supreme Court and the Seventh Circuit Court
of Appeals. In addition, this Part looks at the landscape of habeas
corpus and discusses some of the questions that courts must resolve
in the near future.
In analyzing the AEDPA, it is important to note that the essential element of federal court oversight of state court proceedings
through habeas corpus jurisprudence has not been abolished with
the advent of the new Act. Under the AEDPA, the federal court retains its fundamental right to oversee state criminal proceedings via
the writ of habeas corpus. 36 However, under this new Act, the bal-
ance of power between state and federal government in the enforcement of the criminal laws of this nation has dramatically
shifted back to the states. This becomes clear as one looks at the
"deference"
the Act mandates to state court conclusions of fact and
37
law. 1
The fundamental changes under the AEDPA warrant a thorough examination. These changes fall into nine major categories, in
addition to the question of the retroactivity of the Act itself, or the
waiver of retroactivity by the state. These categories include: (1)
Limitations on filing the "Great Writ"; (2) Standard of Review - deference to state court decisions; (3) Evidentiary hearings in Federal
Court; (4) Exhaustion of State Remedies; (5) Successor Petitions; (6)
Appellate Procedures; (7) "Opt-In" Provisions for Qualifying States;
(8) Retroactivity of the Statute; (9) Waiver of retroactivity of the
Statute.
This Part discusses these issues seriatim, with reference to the
statutory changes and key decisions interpreting the statute, where
they exist. In addition, this Part examines some of the public policies which underlie the new Act and their implications for the criminal justice system.
A Limitationson Filing the "GreatWrit"
Section 2244 provides, in part:
(d)(1)- A one year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to a
judgment of a state court. The limitation period shall run from the
latest of (A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
136. AEDPA, Pub. L. No. 104-132, 110 Stat. 1214, 1218 (1996) (to be codified
in scattered sections of 28 U.S.C.).
137. Id. at 1219.
1997]
Habeas Corpus and the AEDPA
such review .......
(d)(2)- The time during which a properly filed application for state
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.'
Prior to the enactment of AEDPA, there was no limitation on
when a prisoner could file an original action for habeas corpus relief
in federal court. Under the new Act there is a one-year limitation
from the "conclusion of direct review" to file such a pleading. 40 Yet,
the question arises immediately as to what constitutes the
"conclusion of direct review" under subsection (d)(1). Is it, for example, after the state supreme court renders its decision affirming
the conviction? Is it after petition for rehearing in the State Supreme Court has been denied? Is it after a petition for certiorari in
the United States Supreme Court has been denied? Is it after petition for rehearing after denial of certiorari has been ruled upon by
the United States Supreme Court? What if the Supreme Court
grants certiorari?
The probable answer to these questions is that direct review is
completed after the denial of a petition for certiorari by the United
States Supreme Court; the denial of relief by the Supreme Court if
certiorari was granted; or the time to fie the petition for certiorari
has run out, if the petition was never filed. Thereafter, the petitioner must file the petition for habeas corpus relief within one year
of that date, unless a petition for state collateral review has been
filed. The authority for that answer lies in the definition of direct
review provided by the United States Supreme Court in Teague v.
Lane.' In determining the scope of direct review for the purpose of
assessing the retroactivity of a Supreme Court decision, Justice
O'Connor noted that direct review ends "where the judgment of
conviction was rendered, the availability of appeal2 exhausted, and
the time for petition for certiorari had elapsed .....
In addition, another reason for assuming that the statutory
language, "the end of direct review," includes the time until the denial of a petition for certiorari or the time has run for it to be filed, is3
by comparing section 2244(d) with section 2263(a) of the same Act. '
Section 2263(a), which deals with the accelerated procedures available to states that qualify, called "opt-in" states, requires that a habeas corpus petition must be filed within 180 days of the "final state
138. Id. at 1217.
139. Id.
140. Id.
141. 489 U.S. 288, 295 (1989).
142. Id. at 295; see also James Liebman, The New Habeas and the New Section 2255 (Sept. 1996) (Capital Habeas Training Seminar).
143. § 107, 110 Stat. at 1223.
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court affirmance of the conviction and sentence on direct review
,,144
The argument based on statutory construction, namely reading
these provisions in pari materia, is that if Congress wanted to limit
the filing of the petition to one year after affirmance by the highest
court in the state in section 2244(d), it could have used those exact
words, as they did in section 2263(a). Instead, in section 2244(d),
Congress used the language: "the end of direct review," which by
implication
means something other than "final state court affir"145
mance.
The second question to resolve in this section of the Act is to determine the meaning of section 2244(d)(2). This subsection provides
that the statute of limitations tolls during the pendency of a proper
state post-conviction petition. 146 However, what does that mean? At
what point does the petition cease to be pending? For example,
would the petition still be pending after state supreme court affirmance of the denial of the post-conviction petition? Would the petition still be pending until rehearing by the state supreme court is
denied? Would the petition still be pending until the United States
Supreme Court denied certiorari? What about rehearing to the
United States Supreme Court after denial of certiorari? Again, what
if the Supreme Court granted certiorari on review of the postconviction petition? What if a second post-conviction were filed, does
that toll the statute?
One could argue, again, by comparison with section 2263(b),
which details the accelerated provisions available to states which
qualify for "opt-in" status, that the answer to this question is that
the post-conviction petition is pending until denial by the United
States Supreme Court. According to the language in section 2263(b),
a statute tolls only up until the "final State court disposition .... "'
Presumably, since the authors of the legislation did not use that
language in section 2244(d)(2), they meant something other than
disposition by state court affirmance.
However, some courts have held that the proper statutory construction of the Act is to read the Act as a whole.148 Based on that
reasoning, the language tolling the statute only until final state
court disposition from section 2263(b) would be read into section
2244(d)(2). 49 Some practitioners are more cautious and assume that
the statute is tolled only until the state supreme court renders its
144. Id.
145. Id. at 1217.
146. Id.
147. Id. at 1223.
148. Duncan v. Calderon, No. 92-1403-AHS, 1996 WL 695325, at *3 (C.D.
Cal. Nov. 27, 1996).
149. See Memorandum from John Blume on New Habeas Developments to
Habeas Colleagues 2 (Dec. 10, 1996) (on file with the authors).
1997]
Habeas Corpus and the AEDPA
5
opinion denying post-conviction relief."
Under that construction, a
post-conviction petition for rehearing to a state supreme court would
not toll the statute. Erring on the side of caution in these circumstances and assuming that the statute is tolled only until the state
supreme court denies post conviction relief is clearly the safer course
of action.
B. Standardof Review - Deference to State Court Decisions
Section 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted
with respect to any claim that was adjudicated on the merits in State
Court proceedings unless the adjudication of the claim - (1) resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law as determined by the Supreme Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the1 5 facts in light of
the evidence presented in the State court proceeding. 1
Prior to the AEDPA, although factual determinations by state
court judges were presumed correct, determinations of federal law or
mixed questions of fact and law were reviewed de novo by the federal court.12 Conversely, under the AEDPA, while the presumption
of correctness for state court determinations of historical fact has
been retained in section 2254(e)(1),y' the de novo review for questions of federal constitutional law has been altered.'" Essentially,
the AEDPA has abolished de novo review for mixed questions of law
and fact. This constitutes a major change in the federal-state power
balance.
Under § 2254(a) of the old Act, "[fjederal
courts... disregarded the state courts' legal conclusions and
reached independent judgments on issues presented to them." "
Now, instead of being able to ignore the state court judgment
completely, the new statute requires that a federal court allow the
decision of the state court to stand unless the adjudication of the
150. Id.
151. AEDPA, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (1996) (to
be codified as 28 U.S.C. § 2254(d)).
152. Thompson v. Keohane, 116 S. Ct. 457, 459-60 (1995). In Thompson, the
United States Supreme Court held that the question of whether a suspect was
"incustody" for Miranda purposes was a mixed question of fact and law, and
thus, was entitled to de novo review by the federal court. Id. The Court vacated the Ninth Circuit's decision, which held that the question of custody was
a factual determination by the state court, and as such, was entitled to deference and a presumption of correctness under the old 28 U.S.C. § 2254(d). Id.
at 462.
153. § 104, 110 Stat. at 1219.
154. Id.
155. Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir. 1996), cert. granted, 117 S.
Ct. 726 (1997) (citing Brown v. Allen, 344 U.S. 443, 458 (1953)).
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[30:337
claim "(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding."'5
This language limits the former power of the federal court in
two ways. First, with respect to pure questions of federal law, legal
decisions of a state court which are only inconsistent with decisions
of the federal courts, must be allowed to stand. Only if the federal
court can point to a decision of the United States Supreme Court
that is "contrary to" the state court decision, may it grant relief.
Secondly, with respect to mixed questions of fact and law, the federal court may no longer grant relief unless the state court's application of federal law to the facts of the case was "unreasonable." In
order to understand what this means to habeas petitioners, it is necessary to examine some of the decisions of the Seventh Circuit and
other Courts of Appeal.
In Lindh v. Murphy,'57 the Seventh Circuit interpreted the
meaning of section 2254(d)(1) of the AEDPA. In 1988, Lindh was
convicted of murdering two people and attempting to murder a
third.'8 Relying on Wisconsin's bifurcated procedure, Lindh argued
first that he was not guilty." 9 Alternatively, Lindh argued that even
if the jury found him guilty, he was insane at the time of the
crime.' 6 The jury found Lindh guilty, but not insane.' 6' Thereafter,
the court sentenced Lindh to life imprisonment plus thirty-five
years. 16
On appeal, Lindh's principal contention was that at the time of
his trial, the state's psychiatrist was under investigation for engaging in improper sexual conduct with several of his female patients.'6
Therefore, Lindh argued that the psychiatrist might have slanted
his testimony during the second phase of the bifurcated procedure,
relating to Lindh's mental state, in order to obtain leniency from the
prosecution.'" However, the trial court did not permit defense counsel to cross examine the psychiatrist regarding the charges of sexual
impropriety pending
against him, and the jury was unaware of the
65
potential bias.
After losing on this issue in the Wisconsin Supreme Court and
156.
157.
158.
159.
160.
161.
162.
Id.
96 F.3d 856 (7th Cir. 1996), cert. granted, 117 S. Ct. 726 (1997).
Id. at 860.
Id.
Id.
Id.
Id.
163. Lindh, 96 F.3d at 860.
164. Id.
165. Id..
1997]
Habeas Corpus and the AEDPA
in the federal district court, the matter was argued before the Seventh Circuit Court of Appeals on April 9, 1996."6 Fifteen days later,
on April 24, 1996, President Clinton signed the AEDPA into law.'67
The Seventh Circuit then set the case for re-argument to determine
whether the new provisions of the Act applied to Lindh's case, and if
so, what impact the new provisions of section 2254(d)(1) had on his
claims.6'
Having determined that the provisions of the new Act applied
to Lindh,' 69 Judge Easterbrook, writing for the majority, pointed out
that section 2254(d)(1) of the AEDPA marked a retreat from the
former law. 7 Prior to Brown v. Allen, 7' a writ of habeas corpus
could not issue for state criminal procedures violative of the Constitution. 172 The writ was restricted to the review of federal criminal
proceedings. Judge Easterbrook quoted Judge Learned Hand who
pronounced that "upon habeas corpus a federal court does not in any
sense review the decision in the state courts." 173
Although that
practice changed with the decisions of the Warren Court beginning
in 1953 with Brown v. Allen, Judge Easterbrook construed congressional intent in passing the AEDPA as a desire to "move back in that
direction" to the era prior to Brown v. Allen.174
1. Some Suggestions as to the Meaning of "Contraryto Clearly
EstablishedFederal Law as Determinedby the United States
Supreme Court"
The first provision of section 2254(d)(1) of the AEDPA provides,
in pertinent part, that "a writ of habeas corpus shall not issue unless
the adjudication of the claim by the State court (1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal Law as determined by the Supreme
Court of the United States... .""' With respect to the first clause of
that provision, which requires that a state court decision be contrary
to "clearly established federal law as determined by the Supreme
Court" before a writ can issue, Judge Easterbrook stated that "this is
a retrenchment from former practice which allows the United States
courts of appeals to rely on their own jurisprudence in addition to
166. Id. at 856-61.
167. AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (to be codified in
scattered sections of 28 U.S.C.).
168. Lindh, 96 F.3d at 861.
169. Id. at 867.
170. Id. at 869.
171. 344 U.S. 443 (1953).
172. Lindh, 96 F.3d at 873 (quoting Schechtman v. Foster, 172 F.2d 339, 341
(2d Cir. 1949)).
173. Id. (quoting Schechtman, 172 F.2d at 341).
174. Id. at 873.
175. § 104, 110 Stat. at 1218-19 (to be codified as 28 U.S.C. § 2254(d)).
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[30:337
176
that of the Supreme Court."
Thus, according to Judge Easterbrook, under section 2254(d)(1),
a conflict between the decisions of the Seventh Circuit and those of a
state supreme court does not authorize a federal court to issue a writ
of habeas corpus. 17 7 Rather, in order for a writ to issue, the petitioner must show a conflict between a decision of the United States
Supreme Court and the decision of the state supreme court.
Judge Wood, concurring and dissenting in part, strongly opposed this view. Judge Wood stated:
I begin to part company with the majority where it... suggests that
we "need not shoulder the potentially difficult task of determining
when an appellate gloss on a decision of the Supreme Court has so
far departed from its wellsprings as to be the 'real' source of law."
For better or for worse, that task will be ours in virtually every case
that comes before us under the amended law, because it is rare indeed that we will see something identical in all particulars to a case
already decided by the Supreme Court. However minor the factual
variations, we both can and must look for guidance in our own decisions, decisions from other appellate
courts (federal and state),
7
and persuasive secondary sources.1 1
Easterbrook and the majority did not deal directly with the
problems of whether federal appellate court opinions may be viewed
as "compelled" or "dictated" by United States Supreme Court decisions, or if they can, whether they could be used by federal courts to
help decide questions of federal constitutional law.179 However,
Easterbrook did note the similarity of reasoning required under the
new habeas statute and the analysis required by Teague v.Lane.'
Teague involved the problem of determining whether a Supreme Court decision announced a "new rule" of constitutional law,
or was "compelled by prior precedent."6 ' In Lindh, Judge Easterbrook compared the "compelled by existing precedent" language of
Teague to the "clearly established" language of the AEDPA, and
stated that "these are the sorts of questions presented by the Teague
standard which are unlikely ...to pose a different kind of interpre-
tive challenge."' 2
Although Easterbrook never explicitly decided this issue in
Lindh, it is possible that a prisoner can still argue that federal
courts could use favorable opinions from the Seventh Circuit in
reaching their judgments based on the Teague line of reasoning.
This is possible where these decisions were "compelled" by an
176. Lindh, 96 F.3d at 869.
177. Id.
178. Id. at 878 (Wood, J., concurring in part, dissenting in part).
179. Id. at 869.
180. Id. (citing Teague v. Lane, 489 U.S. 288 (1989)).
181. Id.
182. Id.
1997]
Habeas Corpus and the AEDPA
authoritative United States Supreme Court opinion. For example,
suppose a prisoner raised an "ineffectiveness of counsel" claim and
cited Strickland v.Washington.8 as the "clearly established" federal
law in the area, as determined by the Supreme Court. Suppose further that the prisoner then wanted to cite favorable Seventh Circuit
decisions interpreting Strickland, such as Kubat v. Thieret 84 or Emerson v.Gramley. 8' The prisoner should be able to do so by arguing
that these cases were merely "appellate glosses" on a decision by the
Supreme Court, notwithstanding the seemingly restrictive words of
the AEDPA to the contrary. 86
However, in the recent Seventh Circuit opinion of Bocain v.
Godinez,'87 the court stated that Lindh clearly held that "[fiederal
courts are no longer permitted to apply their own jurisprudence, but
must look exclusively to Supreme Court caselaw in order to reverse
state court decisions." 88 In Bocain, the court convicted petitioner of
several residential burglaries and sentenced him to an extended
term of fifty-five years, pursuant to a sentencing statute that was
amended after he committed the crimes in question. 89 The petitioner argued on appeal, inter alia, that this conviction violated his
rights under the Ex Post Facto Clause of the Constitution. 190 However, the Illinois reviewing courts construed the amendment as a
mere clarification of the pre-existing statute, and not as a change in
the statute. 9' Therefore, the Illinois reviewing courts denied relief.'92
In affirming the district court's denial, the Seventh Circuit
pointed out that this case would be decided under the new Act. 9'
Therefore, in order to get habeas corpus relief under section 2254(d),
the petitioner would have to rely upon a decision of the United
States Supreme Court."
The petitioner cited Collins v. Youngblood 195 for the proposition that the Ex Post Facto Clause prohibited
legislatures from retroactively increasing the punishment for criminal acts.' 96 However, Judge Bauer refused to accept the broad holding of that case as binding on the Seventh Circuit in light of the
183.
184.
185.
186.
187.
188.
466 U.S. 668 (1984).
867 F.2d 351 (7th Cir. 1989).
91 F.3d 898 (7th Cir. 1996).
Lindh, 96 F.3d at 878 (Wood, J. concurring).
101 F.3d 465 (7th Cir. 1996).
Id. at 471.
189. Id. at 467.
190. Id. at 468.
191. Id. (citing People v. Gramo, 633 N.E.2d 9 (Ill.
1994)).
192. Id.
193. Id. at 471.
194. Id.
195. 497 U.S. 37 (1990).
196. Bocain, 101 F.3d at 470.
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[30:337
provisions of section 2254(d).1 97 He stated that in order to obtain relief, the petitioner must point to a decision which holds that a state
court's construction of an amended statute was unconstitutional.'98
In other words, "a Supreme Court case must compel an interpretation of the 1991 amendment as a change in, rather than a clarification of, the ... sentencing statute that was in effect when Bocain
committed the relevant crimes."'9
The test which Judge Bauer promulgated in Bocain is a very
difficult burden for a petitioner to overcome. For example, in the
1995-96 term of the United States Supreme Court, the Court only
rendered decisions in approximately ninety cases. With that small a
number, the chances of finding a Supreme Court case with the level
of specificity demanded by Judge Bauer is remote. Thus, the
AEDPA, as interpreted by the court in Bocain, considerably weakens
the ability of the federal court to perform any oversight function visA-vis state court criminal decisions.
2
In Fern v. Gramley,
° the Seventh Circuit also addressed the
meaning of section 2254(d)(1) of the AEDPA. In that case, the court
focused on the meaning of "federal law, as determined by the Supreme Court of the United States."2 °' In determining that the holding of the state court in that case was "contrary to clearly established Federal law as determined by the Supreme Court," Judge
Flaum relied 2upon
the Seventh Circuit opinion in Castellanos v.
2
United States. 1
In Fern, the petitioner pled guilty to a narcotics charge, and received sentences of twenty-five years and ten years concurrently, as
well as a $75,000 fine.2 03 The trial court advised Fern that if he was
unhappy with this sentence and wanted to appeal, he would first
have to file a motion to withdraw his guilty plea.2 4 Thereafter,
counsel appealed directly to the Illinois Appellate Court without first
filing the motion to withdraw Fern's guilty plea.200
The Illinois Appellate Court held that Fern had waived any issues concerning his sentence by failing to fie the appropriate motion.20 Subsequently, petitioner filed a petition for post-conviction
relief, alleging that he had waived all of his sentencing issues on direct appeal due to the ineffectiveness of his counsel.2 0 7 The court
197.
198.
199.
200.
201.
202.
203.
204.
205.
206.
207.
Id. at 472.
Id.
Id.
99 F.3d 255 (7th Cir. 1996).
Id. at 260.
Id. (citing Castellanos v. United States, 26 F.3d. 717 (7th Cir. 1994)).
Id. at 255-56.
Id. at 256.
Id.
Id. (citing People v. Fern, 557 N.E.2d 1010 (1ll. App. Ct. 1990)).
Id. (citing People v. Fern, 607 N.E.2d 951 (Ill. 1993)).
19971
Habeas Corpus and the AEDPA
denied Fern's petition.2"
The United States District Court of the Northern District of Illinois denied Fern's subsequent petition for habeas relief.2 °9 Specifically, the district court found that Fern did not show that he suffered prejudice as a result of trial counsel's failure to file the
10
appropriate motion, as required by the second prong of Strickland."
On appeal, the Seventh Circuit reversed the district court's denial of Fern's petition.21 ' The court relied on Castellanos v. United
States,2 2 which held that the failure of counsel to file an appeal, contrary to the defendant's wishes, constituted not only ineffective assistance of counsel on appeal, but of any assistance on appeal, and
was a "per se violation of the Sixth Amendment."2 3 Accordingly,
there was no necessity for Fern to show prejudice.
The court also found that the decision in Castellanos, which
was decided after Fern had lost on direct appeal, did not announce a
"new rule" of constitutional law.2 4 Rather, Castellanosrested firmly
on established U.S. Supreme Court precedent existing prior to the
direct review in Fern.1 5 The Seventh Circuit therefore vacated the
district court's judgment, because the decision of the state court in
Fern was "contrary to established federal law as established by the
United States Supreme Court."2
It is interesting to note that, in attempting to stay within the
framework of section 2254(d)(1) of the AEDPA, Judge Flaum pointed
to the fact that Castellanos survived a Teague analysis.217 That is,
Castellanos was firmly rooted on the foundation of clearly established U.S. Supreme Court precedent, and for Judge Flaum, that
qualified the Castellanos opinion to be used as precedent even under
section 2254(d)(1). " ' However, absent a Teague analysis, Judge
Flaum clearly holds that only the U.S. Supreme Court decisions
must be followed and not lower federal court decisions. 'o Rejecting
more recent federal court decisions, Judge Flaum stated that under
the AEDPA, "we begin and end our analysis of petitioner's claim
with the Supreme Court's decision in Snyder v. Massachusetts
208. Id.
209. Id.
210. Id. (citing Strickland v. Washington, 466 U.S. 668 (1984)).
211. Id. at 260.
212. 26 F.3d 717 (7th Cir. 1994).
213. Fern, 99 F.3d at 257 (citing Castellanos,26 F.3d at 718).
214. Id.
215. Id. (citing Penson v. Ohio, 488 U.S. 75 (1988)).
216. Id. at 260-61.
217. Id. at 259.
218. Id. at 260.
219. See Devin v. Detella, 101 F.3d 1206, 1208 (7th Cir. 1996) (holding that
petitioner did not have the constitutional right to be present during a jury
view of the crime scene)..
The John Marshall Law Review
[30:337
,,22O
2. Some Suggestions as to the Meaning of "Unreasonable
Application of FederalLaw" Standard
The second and more difficult question which section 2254(d)(1)
of the AEDPA raises is, what does "unreasonable application of federal law" mean and how is "unreasonable" determined? In an attempt to answer this question, this Section discusses the following
1996 Circuit Court decisions: Lindh v. Murphy,"' Drinkard v. Johnson,22'Abrams v. Barnett,"' Neal v. Gramley,'4 as well as brief references to other recent Seventh Circuit opinions.
In the Lindh decision, the court treated the "contrary to established federal law" provision as applying to "pure" questions of federal law, while he interpreted the "unreasonable application of federal law" as relating to "mixed questions of law and fact.""' The
court reasoned that it is up to Congress to regulate the appropriate
habeas corpus relief for violations of Constitutional law determined
by federal courts."6 Under the AEDPA, Congress decreed that unless a decision by a state court is an "unreasonable" application of
clearly established federal law, no relief will be granted to the petitioner. 27
In support of this proposition that Congress has regulated the
type of relief required for violations of federal rights in the past, the
Lindh court analogizes the retrenchment by Congress in the new
habeas statute to the court's previous action in cases such as United
States v. Leon," Nix v. Williams," and Stone v. Powell."' In all of
220. Id. (citation omitted).
221. 96 F.3d 856 (7th Cir. 1996), cert. granted, 117 S. Ct. 720 (1997).
222. 97 F.3d 751 (5th Cir. 1996), cert. denied, 1997 WL 10415 (U.S. Mar. 3,
1997).
223. 100 F.3d 485 (7th Cir. 1996).
224. 99 F.3d 841 (7th Cir. 1996).
225. Lindh, 96 F.3d at 870.
226. Id. at 872.
227. Id. at 871.
228. 468 U.S. 897 (1984). In Leon, a judge issued a defective warrant, which
a police officer then served in "good faith." Id. at 904. The Supreme Court
held that in order for the criminal justice system to operate it was important
that police follow the commands of judges. Id. Therefore, there would be no
deterrent value in punishing the police for serving a defective warrant where
it has been authorized by a court.
229. 467 U.S. 431 (1984). In Nix, evidence of a child's body was found as a
result of illegal conduct on the part of the police, but the United States Supreme Court did not suppress the evidence because of the doctrine of inevitable discovery. Id. at 447. Scores of searchers were looking in the very area
where the body was found, and doubtless would have found the body without
the illegal conduct of the police. Id. at 448.
230. Lindh, 96 F.3d at 871-72 (citing Stone v. Powell, 428 U.S. 465 (1976).
In Stone, the Court held that Fourth Amendment violations that have been
reviewed on the merits in state courts were no longer cognizable on federal
1997]
Habeas Corpus and the AEDPA
these cases the "wrong" was clearly discernible, but for policy reasons no remedy was offered to the defendant. For Judge Easterbrook, these cases simply illustrated the traditional legal difference
between "constitutional rights" and "remedies."
Other examples of the gap between the recognition of violations
of constitutional rights by federal courts, and their granting relief,
are found in the teachings of Teague and its progeny. In Teague, the
Supreme Court held that a "new rule" of constitutional law announced in one of its decisions would apply prospectively, or to litigants still on direct review, but would not apply to petitioners seeking habeas corpus relief."1
The Lindh court determined from all of these examples of
court-approved gaps between recognition of "wrongs" and granting
relief, that Congress could enact a statute restricting the federal
court from granting relief for every constitutional violation. According to the court, "the principal change effected by Section 2254(d)(1)"
is that a federal court must now respect a state court decision that is
within the limits of what is "reasonable," as determined by the U.S.
Supreme Court, even though the federal court recognizes that a constitutional violation has occurred."2 Thus, under the AEDPA, with
respect to the application of federal law to facts, even if the federal
court finds a constitutional violation, it may not issue a writ of habeas corpus, unless "the state's decision reflects an unreasonable
application of the law." 33
Having established that in mixed questions of fact and law, the
federal court cannot grant relief unless the state court's application
of the law to the facts is "unreasonable," Judge Easterbrook and the
majority proceeded to ascertain the meaning of "unreasonable." In
determining whether a state court's treatment of an issue was reasonable, the court first noted that the federal court should take into
account "the care with which the state court considered the subject."2 ' For example, "a responsible, thoughtful answer reached after a full opportunity to litigate" may adequately support the judgment of a state court. 5
The court then interpreted the AEDPA to mean that "when the
constitutional question is a matter of degree rather than of concrete
entitlements, a reasonable decision by the state court must be honored."2 6 The court used the Sixth Amendment right to a speedy trial
to illustrate this interpretation by citing Barker v. Wingo,2 7 where
habeas corpus, for reasons of comity, finality, and the most efficient use of
judicial resources. 428 U.S. at 492-94.
231. Teague v. Lane, 489 U.S. 288, 310 (1988).
232. Lindh, 96 F.3d at 871.
233. Id.
234. Id.
235. Id.
236. Id.
237. 407 U.S. 514 (1972).
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[30:337
the U.S. Supreme Court listed a series of factors to determine when
a defendants' speedy trial rights were violated.2 38 The Court, however, did not specify, "how long was too long."23 9 Suppose that a state
court allowed a prosecution to commence after six years; however, a
federal judge hearing a collateral attack to the conviction believed
that any prosecution commenced after five years was a violation of
defendant's Sixth Amendment rights. Could the federal judge issue
a writ? Presumably, the answer is no under this interpretation of
section 2254(d)(1). Six years might not be "unreasonable" in that
context, and therefore the writ should not issue. That is the fundamental change which Congress enacted in that portion of section
2254(d)(1).
Thereafter, the majority of the Seventh Circuit found that
Lindh did not point to a "clearly established rule of federal law as
determined by the United States Supreme Court" that would require
confrontation of the psychiatrist who testified at the second stage of
the bifurcated trial in Wisconsin." As a result, Lindh was required
to prove that, under the second clause of section 2254(d)(1), the state
court's decision to disallow cross-examination of the state's psychiatrist on the issue of the sex charges constituted an "unreasonable
application of the federal law" and required habeas corpus relief."
The majority of the Seventh Circuit held that the scope of crossexamination was a "matter of degree."'
Therefore, the state supreme court's ruling was not "unreasonable" within the meaning of
section 2254(d)(1), and the writ could not issue. It is interesting to
note that in determining whether the decision of a state court concerning mixed questions of law and fact was "unreasonable," the
federal court may take into account the process by which the state
court reached the decision. By suggesting that a decision reached by
the state court after full litigation of an issue may stand, perhaps
Judge Easterbrook is also suggesting the inverse of that proposition,
that is a state court decision reached without a full and fair hearing
would not be entitled to the same "deference."
In contrast, dissenting Judges Rovner and Ripple found a constitutional infirmity in the AEDPA. They contended that Congress
trampled on the judicial power of Article III courts in two respects.
First, according to Rovner and Ripple, the AEDPA requires federal
courts to make decisions based exclusively on U.S. Supreme Court
law, instead of their own jurisprudence. 243 Second, the AEDPA limits relief to cases where the "state court's departure from the federal
238. Id. at 530.
239. Lindh, 96 F.3d at 871 (citing Barker, 407 U.S. at 514). In Barker, however, the Court held that a five year delay was not too long.
240. Id. at 876.
241. Id.
242. Id. at 877.
243. Id. at 888.
1997]
Habeas Corpus and the AEDPA
The majority of the Lindh court atnorm is 'unreasonable.'"'
tempted to sidestep this issue by setting up a dichotomy which allows total freedom to federal judges to review state court decisions
dealing with federal constitutional issues de novo, but restricts these
same federal courts from granting relief unless the
"unreasonableness" in the application of federal law test was satisfied.'"
As Professor Liebman points out in his thoughtful petition for
certiorari in the Lindh case, the distinction between deciding cases
based upon federal law and applying federal law to fact situations
may be artificial.246 In support of this position, Liebman quoted Justice Oliver Wendell Holmes who observed that "law" is 7 not a
"brooding omnipresence," but it is what the courts do in fact.'
Therefore, it may be that section 2254(d)(1) of the AEDPA is
unconstitutional because it allows Congress to impermissibly restrict
the operation of a constitutionally mandated judiciary,' or it may be
that Judge Easterbrook's reading of the section is constitutionally
incorrect. Since the Supreme Court has granted Professor Liebman
and his colleagues certiorari, perhaps the Court will write the final
chapter on the constitutionality or the proper interpretation of section 2254(d)(1).
In Drinkard v. Johnson, the Fifth Circuit discussed another
view of what constituted an "unreasonable application of law to
facts."2 9 In Drinkard,the court convicted the defendant of murdering three people during a drunken spree.25 At the sentencing phase,
the trial court instructed the jury that if it found that the defendant's drunken state at the time of the murders amounted to temporary insanity, that would constitute mitigation. 251 The defendant
contended that this instruction prevented the jury from considering
his general state of drunkenness as mitigation in itself, even if it did
not rise to the level of insanity.52 In denying defendant's claim under the AEDPA, the Fifth Circuit enunciated its test for interpreting
the meaning of section 2254(d)(1). It stated that "an application of
244. Id.
245. Id.
246. Amicus Curaie brief of Professor James S. Liebman for the petitioner,
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996).
247. Id. at 40 (quoting Oliver Wendell Holmes Jr., The Path of the Law, 10
HARv. L. REV. 457, 461 (1897)); see also Miller v. Fenton, 474 U.S. 104, 114
(1985) (noting that "the relevant legal principle can be given meaning only
through its application to the particular circumstances of a case.").
248. Amicus Curaie brief of the American Bar Association for the petitioner,
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996).
249. 97 F.3d 751 (5th Cir. 1996), cert. denied, 1997 WL 10415 (U.S. Mar. 3,
1997).
250. Id. at 754.
25L Id. at 755.
252. Id. at 756.
The John Marshall Law Review
[30:337
law to facts is unreasonable only when it can be said that reasonable
jurists considering the question would be of one view that the state
court ruling was incorrect."2 In other words, the court held that
habeas relief will only be granted "if a state court decision is so
that it would not be debatable among reasonable
clearly incorrect
2
1
jurists.
In Abrams v. Barnett,2" another Seventh Circuit case following
the line of reasoning enunciated in Lindh, the court held that the
Appellate Court of Illinois was not "unreasonable" in its approval of
a trial court's determination that the defendant was not denied access to counsel over a two hour lunch break.5 6 The defendant's
counsel requested a private interviewing room during the lunch
break so that he could prepare the defendant for his forthcoming
2'
The sheriff refused due to security problems, but he
testimony. 57
offered to let counsel speak to the defendant through a grate in the
bullpen.2 6" The defendant's counsel declined the offer, and renewed
his request to the court after the break. 59 Counsel stated that he
simply could not communicate privileged information through a hole
in a crowded bullpen.2' The trial court refused to give counsel and
the defendant a private room at that point, but the court offered to
let counsel speak to his client in the courtroom prior to the defendant's taking the stand.26 ' Counsel refused the offer, and argued on
under the
appeal that the defendant was denied access to 6counsel
2
States.2
United
v.
Geders
citing
Amendment,
Sixth
The Illinois Appellate Court affirmed the conviction and denied
relief." The Illinois Supreme Court denied leave to appeal. 2"
Thereafter, the United States District Court for the Northern District of Illinois denied petitioner's writ of habeas corpus, and the
Seventh Circuit Court of Appeals case decided the case on November
8, 1996, under the provisions of the AEDPA.6 5
Judge Flaum, writing for the majority, framed the issue for the
Seventh Circuit as whether the decision of the state court was "an
unreasonable application of federal law."" The court then noted
253. Id. at 769.
254. Id.
255. 100 F.3d 485 (7th Cir. 1996).
256. Id. at 491-92.
257. Id. at 490-91.
258. Id. at 488.
259. Id.
260. Id.
261. Id.
262. Id. at 489 (citing Geders v. United States, 425 U.S. 80 (1976)).
App. Ct.
263. Id. at 487 (citing People v. Abrams, 631 N.E.2d 1312, 1318 (Ill.
1994)).
264. Id. (citing People v. Abrams, 642 N.E.2d 1286 (111. 1994)).
265. Id. (citing Abrams v. Barnett, No. 95-C601, 1995 WL 758405, at *7
(N.D. Ill. Dec. 18, 1995)).
266. Id.
1997]
Habeas Corpus and the AEDPA
that in Geders, the defendant was denied access to his counsel
overnight for a period of seventeen hours, while in this case counsel
was denied effective access to his client for a period of only two
hours.267 Moreover, the court noted that in Perry v. Leeke2 a denial
of access to counsel during a fifteen minute break did not amount to
a constitutional violation.2 Based on the framework of those two
cases, the Seventh Circuit held that decision of the state court was
not an "unreasonable" application of federal law under section
2254(d)(1) of the AEDPA.27' Accordingly, the court affirmed the de-
nial of the defendant's petition for a writ of federal habeas corpus. 71
Another example of a federal court finding that the rulings of a
state court were not "unreasonable" is found in the Seventh Circuit's
decision in Neal v. Gramley.27 s In 1982, Neal entered the home of a
neighbor, robbed the sixty-three year old widow, bashed her head in
27
with a lead pipe filled with concrete and stabbed her to death.
Thereafter, a jury sentenced Neal to death.2 74 Neal then filed a postconviction petition claiming that his trial lawyer failed to fully investigate factors in mitigation.
7
'
After the court denied that peti-
tion, Neal filed a second post-conviction petition alleging that, in
addition to ineffective assistance of trial counsel, his attorney in the
first post-conviction hearing was also incompetent. 76
His first attorney only put Neal's current wife on the stand
during the sentencing hearing, who testified that Neal treated her
well. 7' On appeal Neal alleged that if his trial counsel fully investigated his past, he would have learned that Neal's mother severely
beat him as a child; that a jailer would have testified to Neal's good
conduct while awaiting trial; that a psychologist would have submitted an affidavit to the effect that Neal was suffering from a delusion
when he killed the victim; and that Neal's delusionary thought was
that the elderly neighbor was his mother. 76
Writing for the majority, Judge Posner first stated that under
Lindh, "when the issue tendered to the federal court is ... not the
meaning of the Constitution but the application of a settled principle
to the facts of the case, the petitioner must show that the state
courts'
determination was
not merely
incorrect,
but
267. Id. at 489.
268. 488 U.S. 272 (1989).
269. Abrams, 100 F.3d at 490.
270.
271.
272.
273.
274.
275.
276.
277.
278.
Id. at 493.
Id. at 491.
99 F.3d 841 (7th Cir. 1996).
Id. at 842-43.
Id. at 842.
Id. at 843.
Id.
Id. at 844.
Neal, 99 F.3d at 843.
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[30:337
'unreasonable.'"2"' The court then held that the determination by the
state court that Neal's counsel was not ineffective was not
"unreasonable" within the meaning of the AEDPA. s° In addition,
the court noted that the restriction on the federal court's decision
was based on the proviso that "the determination was made after... a full and fair opportunity to litigate the issue" in state
court. "2 'l
In addition, the Seventh Circuit ruled that there was no constitutional right to counsel at post-conviction proceedings, and that the
alleged error by the first post-conviction counsel was insufficient
grounds for the federal court to issue a writ. 2 Specifically, the court
noted that under the AEDPA, Congress expressly stated that incompetence of counsel in post-conviction proceedings is not a ground
for relief in federal habeas corpus. 28 Moreover, the state court
found that trial counsel was not ineffective in failing to present the
additional evidence found by the second post-conviction counsel, and
hence, the first post-conviction counsel was also not ineffective for
failing to find this information.2 4 Therefore, under Illinois law, since
the first post-conviction counsel was not ineffective, the issues raised
by the second post-conviction counsel were procedurally defaulted,
and consequentially, should not even be considered on federal habeas review. 2815
In addition, even if the federal court would disagree with the
state court and find the trial counsel and the first post-conviction
counsel ineffective, the petitioner must not only prove incompetence,
but also resulting prejudice. Judge Posner refused to find these two
requirements and concluded that Neal offered no real proof of
prejudice, since "no jury would buy the psychologist's fantastic
speculation that when Neal advanced with pipe and knife against
Mrs. Waid, he saw his mother and was frightened, or the conclusion
that he should be punished more lightly because he thought he was
'only' killing his mother, who had mistreated him as a child."2 8
279.
280.
281.
282.
283.
284.
285.
Id.
Id. at 844.
Id. at 843.
Id.
Id. (citing § 104(i), 110 Stat. at 1219).
Id.
See generally id.
286. Id. at 845. In holding that Neal could not demonstrate prejudice, Judge
Posner compared Neal's case to Stewart v. Gramley. Id. at 845 (citing Stewart
v. Gramley, 74 F.3d 132 (7th Cir. 1996)). In that case, Stewart shot two men
dead and wounded one woman during a jewelry store robbery. Stewart, 74
F.3d at 133. Stewart pled guilty and the court sentenced him to death. Id.
After exhausting all of his direct appeals and his requests for post conviction relief, Stewart filed a petition for habeas corpus in the U.S. District Court
for the Northern District of Illinois. Id. The district court found that the defendant had pled guilty involuntarily. Id. The Seventh Circuit reversed and
remanded the case to district court to adjudicate the remaining claims. Id.
1997]
Habeas Corpus and the AEDPA
Not all circuit courts interpreting the AEDPA, however, have
affirmed state court decisions as "reasonable" applications of federal
law. One example is the Seventh Circuit reversal of the state court
decision in Hall v. Washington. 7 In Hall, the defendant was convicted of the murder of a supervisor in the kitchen at Pontiac prison
and sentenced to death. 8 After the Illinois Supreme Court affirmed
his conviction and sentence on direct appeal, the defendant filed a
post-conviction petition, alleging ineffectiveness of counsel at trial
and sentencing.29 The post-conviction court dismissed this petition,
and the Illinois Supreme Court affirmed the dismissal. 9 '
Thereafter, petitioner filed a petition for habeas corpus review
in the United States District Court, which granted him an evidentiary hearing, but denied relief."' On appeal to the Court of Appeals
for the Seventh Circuit, Judge Wood, speaking for a unanimous
panel, evaluated the state court decision pursuant to section
The district court denied the remaining claims and Stewart appealed. Id.
On appeal to the Seventh Circuit, Stewart contended that his trial lawyers
did little to adequately investigate facts which may have been presented as
mitigation. Id. at 135. The court held that Stewart was not denied effective
assistance of counsel. In that case, as. in Neal, defense counsel had presented
some evidence of mitigation at trial, but post-conviction counsel hired a mitigation specialist, who uncovered further information about Stewart's background. Id. But in the Neal case, Judge Posner characterized the mitigation
discovered by the mitigation expert as capable of being used as aggravating
evidence as well; therefore, neither the lawyer in Stewart, nor the lawyer at
bar were able to demonstrate harm. See Neal, 99 F.3d at 845. The Seventh
Circuit held in Stewart that a lawyer's decision not to delve deeply into a client's history, if supported by sound professional judgment, does not rise to the
level of ineffective assistance of counsel. Stewart, 74 F.3d at 135. Because
conversations with Stewart failed to unearth anything remarkable, a fuller
investigation was not prejudicial. Id. The court stated that, "we know this
because Stewart's current lawyers, whose competence and energy cannot be
doubted, have conducted the investigation that they say their predecessors
should have done and they have come up with nothing or perhaps less than
nothing." Id. at 136.
Stewart claimed that the trial judge should have appointed a psychiatrist
to examine him for the purpose of mitigation. Id. at 133-34. The Seventh Circuit held that Ake v. Oklahoma, 470 U.S. 68 (1985), did not apply to his federal habeas corpus case. Stewart, 74 F.3d at 135 (citing Teague v. Lane, 489
U.S. 288 (1988)).
The court further held that if Stewart had the right to a psychiatric examination, the trial court's failure to appoint a psychiatrist would not prejudicial error. Id. at 134. In reaching this decision, the court looked at several
psychiatric evaluations Stewart underwent after his sentencing, and concluded that there was no "reliable indication of any psychiatric disorder
graver than 'mild situational anxiety."' Id. Furthermore, the court found
that, absent evidence of a psychiatric condition before sentencing, Stewart's
chances of receiving a lesser sentence were not realistic. Id.
287. No. 95-1125, 1997 WL 42967 (7th Cir. Feb. 4, 1997).
288. Id. at *1.
289. Id.
290. Id.
291. Id.
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[30:337
2254(d)(1) of the AEDPA.iu The court found that Hall's counsel totally failed to interview his client prior to sentencing, failed to present even a single mitigation witness, and failed to provide the court
with a single valid argument for sparing petitioner's life. 3 The
court noted that:
Congress would not have used the word 'unreasonable' if it really
meant that federal courts were to defer in all cases to the state
court's decision. Some decisions will be at such tension with governing United States Supreme Court precedents, or so inadequately
supported by the record, or so arbitrary, that a writ must issue.'
The court then found that the state court's decision that Hall's
counsel provided effective assistance at sentencing was
"unreasonable' in light of the United States Supreme Court's ruling
in Strickland v. Washington. 95
292. Id. at *6-12.
293. Id. at *7.
294. Id. at *6.
295. Id. Strickland established a two-prong test for ineffective assistance of
counsel: performance of counsel must be objectively unreasonable; and, there
is a reasonable possibility that, but for counsel's errors, the result of the trial
would be different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996) (holding that the failure
to present any mitigating witnesses at the sentencing phase of a capital case
was ineffective assistance of counsel, even though the defendant told counsel
not to present such evidence) see also United States ex rel. Holman v. Gimore,
No. 95-C5035, 1997 U.S. Dist. LEXIS 2309 (N.D. Ill.
Feb. 26, 1997) (holding
that under the AEDPA, the Illinois Supreme Court's decision was unreasonable under Strickland v. Washington); Compare with Eddmonds v. Peters 93
F. 3d 1307 (7th Cir. 1996).
In Eddmonds, the Seventh Circuit maintained its long standing reluctance
to issue writs for trial counsel incompetence. Stating that it was harmless
error, the Seventh Circuit affirmed the district court's refusal to grant a petition for a writ of habeas corpus for a petitioner who had a long well documented psychiatric history and for whom no fitness hearing was conducted
before trial. Id. at 1323. Eddmonds lured a nine year old boy to his apartment
just minutes after the boy was sodomized by two other men and then sodomized
the boy himself. Id. at 1322. When the boy began to cry, Eddmonds pushed his
head into the bed suffocating the boy. Id. Eddmonds was sentenced to death for
deviant sexual assault and murder of the nine year old boy. Id. at 1310. The
Illinois Supreme Court affirmed the conviction and the sentence. Id. 1311. After his requests for post-conviction relief were unsuccessful, Eddmonds filed a
writ of habeas corpus alleging ineffective assistance of counsel because his attorney failed to request a fitness hearing before trial. Id. The district court denied the petition and Eddmonds appealed to the Seventh Circuit. Id.
On appeal, the Seventh Circuit held that, assuming arguendo that counsel's
failure to request a hearing was a constitutional violation, Eddmonds did not
suffer any prejudice, and therefore, the second prong of Strickland was not satisfied. Id. at 1316. The court theorized that if a fitness hearing was held, Eddmonds would have been found fit because Eddmonds was found fit two and one
half years before trial. Id. at 1317. Furthermore, the court relied on Eddmond's detailed statement and testimony during the suppression hearing as evidence of Eddmonds' competence to aid in his defense. Id. at 1316-17. As a re-
1997]
Habeas Corpus and the AEDPA
C. Evidentiary Hearingsin FederalCourt
Section 2254(e) of the AEDPA provides that:
(1) In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to a judgment of a State court,
a determination of a factual issue made by a State court shall be presumed to be correct. The application shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in
State Court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that(A) the claim relies on(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable fact-finder would have found the applicant guilty of
the underlying offense.298
This section constitutes a major change in the law. Under the
old Act, factual determinations by a state court were presumed to be
correct; however, this assumed that there was a hearing in state
court on the merits of the factual issue followed by a written finding
or opinion resolving the matter. Moreover, the presumption of correctness did not apply if: the merits of the factual dispute were not
resolved in a state court hearing; the fact-finding procedure was not
adequate to provide a full and fair hearing; the material facts were
not fully developed at a state court hearing; or the indigent appli-7
cant was not represented by counsel at the hearing in state court.11
In contrast, the AEDPA abolishes all of these exceptions to the presult, the court held "the failure of Eddmonds' trial counsel to request a fitness
hearing was not prejudicial within the meaning of Strickland." Id. at 1319.
The Seventh Circuit determined that the standard for ineffective assistance
of counsel at the sentencing stage is the same as at the guilt phase: whether the
defendant was prejudiced by counsel's actions. Id. at 1319-20 (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). The court found that it was not necessary to determine if trial counsels' error constituted ineffective assistance of
counsel because Eddmonds suffered no prejudice. Id. at 1316-17. In so ruling,
the court noted that "[iut is very unlikely that inconclusive evidence of mental or
emotional disturbance would have overcome this indisputable evidence that
Eddmonds is a vicious and rampant sexual predator." Id. at 1321.
296. AEDPA, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219-20 (1996) (to
be codified at 28 U.S.C. § 2554).
297. 28 U.S.C. § 2254(d) (1994).
The John Marshall Law Review
[30:337
sumption of factual correctness.
Moreover, under the prior Act, a federal court always had discretion to conduct an evidentiary hearing even if it was not required.
Under the AEDPA, however, no evidentiary hearings may be conducted unless the applicant relies on a "new rule" of constitutional
law made retroactive to collateral proceedings by the Supreme
Court, or the defendant relies on a new claim that could not have
been discovered earlier.2m
Professor Yackle suggests that if there was no evidentiary
hearing in state court, because of opposition by the prosecutor or the
failure of the trial court judge to grant such a hearing, a petitioner
should still request an evidentiary hearing in federal court.2 " After
all, the AEDPA prohibits federal evidentiary hearings only when it
is the applicant's fault.u Therefore, Professor Yackle argues that if
it is0 not
the applicant's fault, then section 2254(e)(2) does not ap3 1
ply.
In Pitsonbargerv. Gramley, ° the Seventh Circuit interpreted
section 2254(e)(2) of the AEDPA. In that case, the court convicted
Pitsonbarger of two murders in Illinois, and he received the death
penalty."' 3 Prior to this sentence, he had pled guilty in Nevada to attempted murder and other charges, and he received life imprisonment.3 ° Subsequently, Pitsonbarger plead guilty in Missouri, and
received another sentence of life imprisonment." 5 After losing his direct appeal in the Illinois Supreme Court, Pitsonbarger filed a postconviction petition in the Circuit Court of Peoria County.0 8 The Circuit Court dismissed this petition as frivolous without holding a
hearing on the merits of Pitsonbarger's claims.0 7 Thereafter, Pitsonbarger's post-conviction appeal to the Illinois Supreme Court was
dismissed due to the failure of his counsel to file his appellate brief
on time. He then filed a petition for a writ of habeas corpus in the
district court, requesting an evidentiary hearing on his claims.3 N
The Federal District Court for the Central District of Illinois
denied Pitsonbarger an evidentiary hearing and dismissed his
298. § 104, 110 Stat. at 1219.
299. Memorandum from Larry W. Yackle On State Court Fact-Finding And
Federal Evidentiary Hearings to the Federal Judicial Center Video Seminar
on New Developments in the Federal Law of Habeas Corpus, (Sept. 12, 1996)
(on file with authors) [hereinafter Yackle Memorandum]. See generally Larry
w. Yackle, A Primeron the New Habeas Corpus Statute, 44 BUFF. L. REV. 381
(1996).
300. § 104, 110 Stat. at 1219.
301. Yackle Memorandum, supra note 299.
302. 103 F.3d 1293 (7th Cir. 1996).
303. Id. at 1297.
304. Id.
305. Id.
306. Id.
307. Id.
308. Id.
1997]
Habeas Corpus and the AEDPA
claims as procedurally barred. " The district court noted that Pitsonbarger failed to raise many of the claims included in his writ of
habeas when he appealed to the Illinois Supreme Court on direct
review.310 In addition, the district court found that the Illinois Supreme Court did not address these claims on the appeal of the denial
of his post-conviction hearing, since his post-conviction counsel was
not allowed to file his brief late.31'
Judge Wood, writing for the majority, affirmed the district
court's denial of an evidentiary hearing stating "the rules of procedural default prevent us from reaching these claims, troubling
though they are."3' Although the district court premised its denial
of an evidentiary hearing on the prior Act, the Seventh Circuit affirmed under section 2254(e)(2) of the AEDPA.313 The court held
that none of Pitsonbarger's claims satisfied the criteria enunciated
by Congress in the AEDPA.1 4 In particular, the court noted that the
petitioner was not relying on a new rule of constitutional law made
retroactive to cases on collateral review.313 The petitioner failed to
present facts that would not be discoverable through due diligence.1 6
The proffered facts underlying the claim did not establish by clear
and convincing evidence that, but for a constitutional error, no reasonable fact finder would have found petitioner guilty. 31 7 Thus, the
Seventh Circuit affirmed the denial of the Pitsonbarger's request for
an evidentiary hearing. 38
As a result of this decision by the Seventh Circuit, most of Pitsonbarger's constitutional claims went unheard by the state postconviction court or in federal habeas corpus proceedings. It is interesting to note, however, that in his signing statement President
Clinton remarked, "if [section 2254(e)] [were] read to deny litigants a
meaningful opportunity to prove the facts necessary to vindicate
federal rights, it would raise serious constitutional questions." 19
Section 2254(e) of the AEDPA presents a very restrictive test.
that the applicant rely on a "new rule made retrorequirement
The
active to collateral proceedings by the Supreme Court" is a Herculean obstacle. The very definition of retroactivity in Teague v.
Lane 12 is that no "new rule" will be made retroactive to collateral
309.
310.
311.
312.
313.
314.
315.
316.
317.
318.
319.
Id.
Id.
Id.
Id. at 1299.
Id.
Id.
Id.
Id.
Id.
Id.
Statement by President Clinton upon signing S. 1963, 32 WKLY. COMP.
PRES. DOC 719 (Apr. 29, 1996).
320. 489 U.S. 288 (1989).
The John MarshallLaw Review
[30:337
proceedings by the Supreme Court. 2' Teague holds that new rules
will be made retroactive to cases on direct review only, except for
two narrow exceptions." One exception is where a crime has been
decriminalized.' "2 Another exception is where a decision is recognized as a "bedrock" or a "watershed" decision, such as the holding
by the Supreme Court that indigents have a right to counsel under
the Sixth Amendment. 24 Except for those two narrow exceptions,
decisions announcing "new rules" are simply not retroactive to cases
on collateral attack.
Section 2254(e)(2)(B) of the AEDPA does not permit an evidentiary hearing in federal court unless the defendant can advance a
newly discovered claim that will demonstrate "by clear and convincing evidence that, but for a constitutional error, no reasonable factfinder juror would have found the applicant guilty of the underlying
offense."32 This is similar to the test adopted by the Supreme Court
in Sawyer v. Whitley 32' and Schlup v. Delo."7 In both those cases the
Supreme Court granted relief using this test as opposed to the more
stringent test of Jackson v. Virginia.28 To this extent, section
2254(e)(2)(B) is better for the petitioner than it could have been, but
the entire section militates against hearings in federal court on habeas petitioners' claims, and weakens the power of the federal court
and the federal government vis-h-vis the state courts and state government in the administration of the criminal law. However, the
question in Sawyer was whether "but for a constitutional error, no
reasonable juror would find a petitioner eligible for the death penalty under the applicable state law."'29 In requesting an evidentiary
hearing in the federal court, Pitsonbarger argued that the requirement in the AEDPA that "no reasonable fact-finder would have
found the petitioner guilty of the underlying offense," included the
situation where the petitioner is not eligible for death. The Seventh
Circuit rejected this argument. The court held that innocence of the
death penalty was not encompassed by the AEDPA, which contemplated relief only when, but for the constitutional error, the petitioner was innocent of the underlying offense.
321.
322.
323.
324.
Id. at 310.
Id. at 311.
Id.
Id.
325. Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
326. 505 U.S. 333 (1992).
327. 513 U.S. 298 (1995).
328. 443 U.S. 307, 319 (1979) (holding that the proper standard for granting
relief in a federal habeas corpus proceeding is whether the petitioner can
show that no rational trier of fact could find proof of guilt beyond a reasonable
doubt).
329. Sawyer, 505 U.S. at 336.
1997]
Habeas Corpus and the AEDPA
D. Exhaustion of State Remedies
Section 2254(b) reads in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available state corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
(2) An applicant for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement"
Congress clearly stated its policy objectives in this section. In
the interests of comity, the defendant must first present all federal
constitutional claims to the state court, and await their review by
the highest court in the state.3"' This gives the state an important
role in the administration of the criminal law of our nation. If the
defendant fails to exhaust his or her claim in the state court system,
and raises both exhausted and unexhausted claims in his federal
habeas corpus petition, section 2254(b) changes the way a federal
court will treat such "mixed" petitions. Under the prior Act, if a petitioner filed a petition with both exhausted and unexhausted
claims, a federal court could hold the case on call, or dismiss the petition with leave to reinstate, while the petitioner went back to state
court to exhaust his claims."'
Conversely, under section 2254(b)(2) of the AEDPA, if the petitioner presents a "mixed" petition to a federal court, the federal
court may dismiss the entire petition.333 There is no provision under
the AEDPA for the federal court to grant a "mixed" petition, unless
the state waives "exhaustion." To insure the infrequency of these
waivers, exhaustion is never presumed under section 2254(b)(3).
Section 2254(b)(3) mandates that states make express waivers of the
exhaustion requirement. 3 ' The purpose of the exhaustion doctrine
330. AEDPA, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219-20 (1996) (to
be codified at 28 U.S.C. § 2554).
331.
332.
333.
more,
334.
Rose v. Lundy, 455 U.S. 509, 515 (1982).
Id. at 523.
§ 101, 110 Stat. at 1217. See also United States ex rel. Walton v. GilNo. 96-C2375, 1997 WL 51703 (N.D. 111. Feb. 4, 1997).
§ 101, 110 Stat. at 1217.
The John MarshallLaw Review
[30:337
is to protect the role of the state courts in the enforcement of federal
constitutional law.335 Again, this tightening of the "exhaustion" doctrine again tilts the balance of power further in favor of state courts
in the administration of our criminal justice system.
E.
SuccessorPetitions
Section 2244 provides in pertinent part:
(2) A claim presented in a second or successive habeas corpus application ...
shall be dismissed unless-
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, ...
or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii)
the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court
to consider the application.
(B) A motion in the court of appeals for an order authorizing the
district court to consider a second or successive application shall be
determined by a three-judge panel of the Court of Appeals.
(C) The Court of Appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The Court of Appeals shall grant or deny the authorization to
file a second or successive application not later than 30 days after
the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to
file a second or successive application shall not be appealable and
shall not be the subject of a petition for rehearing or for a writ of
certiorari.'s6
Under the former habeas corpus statute, the applicant must file
a successor petition in federal district court. If denied relief, the
335. Rose, 455 U.S. at 518.
336. AEDPA, Pub. L. No. 104-132, § 101, 110 Stat. 1214, 1217 (1996) (to be
codified at 28 U.S.C. § 2554).
1997]
Habeas Corpus and the AEDPA
7
applicant could file an appeal in the U.S. Court of Appeals.1 If denied the petition, the applicant could appeal to the Supreme Court.3s
Under the AEDPA, however, this procedure is completely different. The successor petition must meet new standards. First, section 2244(2)(A) requires the new claim be based upon a "new rule" of
constitutional law made retroactive to cases on collateral review by
the Supreme Court.33 9 As suggested previously, this is virtually an
impossible burden because the Supreme Court has held that a "new
rule" of constitutional law will almost never be applied to cases on
collateral review. 30
In addition, the requirement that "the facts underlying the
claim, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable fact-finder would
have found the applicant guilty of the underlying offense," is also a
departure from the prior Act. The former Act required only that a
successor petition allege factual grounds not adjudicated in the earher petition, and that the petitioner did not deliberately
withhold
34 1
the claim in the first writ or otherwise "abuse the writ." '
These new restrictions make it exceedingly difficult to file
"successor" petitions under the AEDPA. For example, in Roldan v.
United States, 2 the Seventh Circuit upheld the denial of a petitioner's successor petition, since the petitioner alleged neither that
the claim relied on a new rule of constitutional law made retroactive,
nor that the factual predicate for the claim could not have been dis343
covered previously through the exercise of due diligence.
In addition, unlike the former Act which simply requires a petitioner to file a successor petition in the district court, section
2244(3)(A) of the AEDPA requires the petitioner to first present a
motion for leave to fie a successor petition to the U.S. Court of Appeals." ' Thereafter, under subsection 3(E), if the court denies the
motion for leave to fie the successor petition, there is no further appeal to the U.S. Supreme Court on this petition.4
Challenges to the provision forbidding further review by the
337. 28 U.S.C. § 2244 (1994).
338. Id.
339. § 101, 110 Stat. at 1217.
340. See Teague v. Lane, 489 U.S. 288, 311 (1989). There are two rare exceptions to the ban on retroactivity of "new rules" for cases on collateral review. They are either a) for crimes which have been decriminalized, or b) for
watershed decisions such as a right to counsel case or other "bedrock procedural rules." Id.
341. 28 U.S.C. § 2244 (1994).
342. 96 F.3d. 1013 (1996).
343. Id. at 1014. See, e.g., Coleman v. United States, No. 96-745, 1997 WL
53488 (10th Cir. Feb. 11, 1997).
344. § 101, 110 Stat. at 1217.
345. See id.
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[30:337
U.S. Supreme Court were brought immediately upon passage of the
AEDPA. In Felker v. Turpin,3'" Felker, who was under a sentence of
death, filed a successor petition on May 2, 1996, in the Court of Appeals for the Eleventh Circuit.'
The Eleventh Circuit denied
Felker's motion for leave to file the successor petition. 348 Notwithstanding the clear language of the AEDPA prohibiting further appeal, Felker fied a petition for writ of certiorari in the Supreme
Court.349 He alleged that the legislation amounted to "a suspension
of the writ," and that subsection (E) constituted an unconstitutional
restriction on the jurisdiction of the Supreme Court.3 5°
Speaking for a unanimous Court in denying the writ, Chief
Justice Rehnquist first found that the Court retained its power to
review original writs of habeas corpus conferred upon it by the Judiciary Act of 1789; consequently, "there can be no plausible argument that the Act has deprived the Court of appellate jurisdiction in
violation of Article III, Section 2.,,351 The Court then held there was
no suspension of the writ in violation of Article I, Section 9, Clause 2
of the Constitution, which provides that "the Writ of Habeas Corpus
shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it." 352 The Court stated that the
"new restrictions on successive petitions" are well within the complex and "evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions."3
Thus, a unanimous Supreme Court rejected the first
challenge to the AEDPA, and held that section 2244 of the AEDPA
passed constitutional muster.
F. Appellate Procedures
Section 2253 reads in pertinent part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court;
or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability... if the applicant has made a substantial showing of the denial of a constitutional right.
346.
347.
348.
349.
350.
351.
352.
353.
116 S. Ct. 2333 (1996).
Id. at 2337.
Id.
Id.
Id. at 2340.
Id. at 2339.
Id. at 2339-40.
Id. at 2340.
1997]
Habeas Corpus and the AEDPA
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph (2).'"
Under the former Act a district court issued a "certificate of
probable cause. " "
Once this certificate was obtained, any issue
could be raised on appeal. Under the AEDPA, the petitioner must
file a motion in the circuit court of appeals requesting the issuance
of a "certificate of appealability."3 " In this motion, the petitioner
must identify each issue that he or she wishes to raise on appeal.
The court of appeals may then select which of these issues it agrees
to hear, or it may decline to hear an appeal on any of these issues.
For example, in Herrerav. United States 3s5 the Seventh Circuit
noted that the criteria for issuing the certificate of probable cause
and the criteria for issuing a certificate of appealability are similar.3 ' According to the court, a petitioner had to make "a substantial
showing of the denial of a federal right" in order to obtain a certificate of probable cause. 60 Under section 2253(c)(2) of the AEDPA, "a
certificate of appealability may issue... only if the applicant has
36 1
made a substantial showing of the denial of a constitutional right."
Consequently, the court concluded that "the two certificates differ
only in scope: a certificate of probable cause places the case before
the Court of Appeals, but a certificate of appealability must identify
each issue meeting the 'substantial showing' standard."3 2
G. "Opt-In"Provisionsfor Qualifying States
The 104th Congress passed "Special Habeas Corpus Procedures
in Capital Cases" as part of the AEDPA. This provides an accelerated timetable for habeas litigation for those states which qualify for
what has been termed "Opt-In" status.
Section 2261 provides in pertinent part:
(a) This chapter shall apply to cases arising under section 2254
brought by prisoners in State custody who are subject to a capital
sentence. It shall apply only if the provisions of subsections (b) and
354. AEDPA, Pub. L. No. 104-132, § 102, 110 Stat. 1214, 1217-18 (1996) (to
be codified at 28 U.S.C. § 2553).
355. 28 U.S.C. § 2253 (1994)
356. Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir. 1996) (citing §
102, 110 Stat. at 1217-18).
357. Id. But see 7TH CIR. R. 22.1. Rule 22.1 provides that in the Seventh
Circuit, the Certificate of Appealability (COA) should first be filed with the
district court. Id. Then, if the district court denies the COA, counsel must
include the district court's denial of the COA with the petitioner's reasons for
the granting of the certificate by the court of appeals. Id.
358. 96 F.3d 1010 (7th Cir. 1996).
359. Id. at 1012.
360. Id. (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
361. Id.
362. Id. (emphasis added).
The John Marshall Law Review
[30:337
(c) are satisfied.
(b) This chapter is applicable if a State establishes by statute,
rule of its court of last resort, or by another agency authorized
by State law, a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent
counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have
been upheld on direct appeal to the court of last resort in the
State or have otherwise become final for State law purposes.
The rule of court or statute must provide standards of competency for the appointment of such counsel.
(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide
for the entry of an order by a court of record(1) appointing one or more counsels to represent the prisoner
upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject
the offer ....
(d) No counsel appointed pursuant to subsections (b)and (c)to represent a State prisoner under capital sentence shall have previously
represented the prisoner at trial or on direct appeal in the case for
which the appointment is made unless the prisoner and counsel expressly request continued representation.
(e) The ineffectiveness or incompetence of counsel during State or
Federal post-conviction proceedings in a capital case shall not be a
ground for relief in a proceeding arising under section 2254.33
Under this section, there are four basic criteria in order for a
state to qualify for "opt-in" status. First, the state must provide a
mechanism for the appointment of counsel in death penalty postconviction cases.3 " Second, there must be standards for the appointment of such counsel mandated by the state court or the state
legislature."' Third, these lawyers must receive payment for reasonable litigation expense. 36 Finally, post-conviction counsel must
not have represented the prisoner either at trial or direct appeal, absent an express request by the prisoner.6 7 Once these conditions are
satisfied, the time within which to file a habeas corpus petition is no
longer one year after the end of direct review. Instead, section
363. AEDPA, Pub. L. No. 104-132, § 107, 110 Stat. 1214, 1221-22 (1996) (to
be codified at 28 U.S.C. § 2561).
364. Id.
365. Id.
366. Id.
367. Id.
19971
Habeas Corpus and the AEDPA
2263(a) of the AEDPA only allows a petitioner to file a habeas corpus
petition up to "180 days after final State court affirmance of the
conviction and sentence on direct review or the expiration of the
time for seeking such review."'
Section 2263(a) also expedites the schedule in federal court.
The parties have a minimum of 120 days to file all pleadings and
briefs, and to conduct a hearing if one is warranted."' All of this,
however, must take place within a maximum of 180 days after the
filing of the habeas corpus petition, because the district court judgment is due within 180 days after the date the application for habeas corpus was filed.""° The district court is allowed an additional
thirty days to file its opinion, but only under extraordinary circumstances.3
In addition, section 2263(a) even affects the circuit court of appeals. Under this section, the decision of the federal reviewing court
must be rendered no later than 120 days after petitioner's reply brief
is filed. 72 Moreover, if the defendant files a petition for rehearing
after his or her case is affirmed on appeal, the court of appeals must
grant or deny the rehearing petition within thirty days of its filing,
or within thirty days of the State's response.'
Of course, it is unclear what punishment, if any, can be meted
out to the circuit and district court judges if they fail to meet these
time deadlines, since they have lifetime appointments. The AEDPA
requires the Administrative Office of United States Courts to submit
an annual report to Congress reflecting the compliance with these
time limitations by both the district courts and courts of appeal.74
In addition to the matters discussed above, there are other differences between the normal habeas corpus procedures under
AEDPA and the special provisions for the qualifying or "opt-in"
states. One difference is that under the special habeas corpus procedures, no amendment to an application for a writ of habeas corpus
shall be permitted after the filing of the state's answer, except in extraordinary circumstances. 7' To date, the U.S. courts of appeals
have not found any state to qualify for the special habeas corpus
procedures in capital cases as an "opt-in" state.
H. Retroactivity of the Statute
Sections 2261-2266 of the AEDPA establish that the effective
date in which the "special habeas corpus procedures in capital cases"
368.
369.
370.
371.
372.
373.
374.
375.
Id. at
Id. at
Id.
Id.
Id. at
Id. at
Id. at
Id.
1223.
1224.
1225.
1226.
1225.
The John Marshall Law Review
[30:337
would apply to pending cases in states that qualified for "Opt-In"
status is on or after the date of enactment of the Act.37 With respect
to the remainder of the AEDPA, sections 2244-2255, there is no effective date specified.37 7 Therefore, the question arises as to when
these provisions take effect and to what class of cases they apply.
This question is of extreme importance because of the radical
changes enacted in the new legislation. As discussed previously,
questions relating to when the federal court is limited in its review
of state court decisions involving issues of federal law or mixed
questions of fact and law; what conditions are required for evidentiary hearings in federal court; and what time limitations are placed
on the filing of federal habeas corpus petitions, are all dependent
upon which federal habeas act applies.
On September 12, 1996, in Lindh v. Murphy, the Seventh Circuit resolved this issue. Specifically, the Seventh Circuit addressed
whether the AEDPA applied to Lindh's petition for habeas corpus
relief, even though it had been filed prior to April 24, 1996.78
Fifteen days after Lindh lost his appeal in the Supreme Court
of Wisconsin,379 President Clinton signed the AEDPA into law. The
Seventh Circuit set the case for re-argument to determine whether
the new provisions of the AEDPA applied to Lindli's case, and if so,
what impact the new provisions of section 2254(d)(1) had on Lindh's
case.mo The court then held that the AEDPA applied to Lindh's
case.3
Judge Easterbrook, speaking for the majority of the court,
noted that Landgraf v. USI Film Products82 was the leading U.S.
Supreme Court decision in this area. According to the court, Landgraf prescribed a sequence of determinative issues regarding retroactivity. 33 The first step was to decide whether Congress specified to
which cases the AEDPA applies.38 If it did, then the court can simply follow the statute with respect to its applicability.88 If Congress
did not specify to which cases the AEDPA applies, then a court must
apply the law in force at the time the case is decided, unless the Act
attached new legal consequences to events completed before its enactment. 388 Under the latter situation, the Act is considered retroactive.
376. Id. at 1225-26.
377. Id. at 1217-19.
378. Lindh v. Murphy, 96 F.3d 856, 861 (1996), cert. granted, 117 S. Ct. 726
(1997).
379. Id. at 860.
380. Lindh, 96 F.3d at 861.
381. Id. at 862.
382. 114 S. Ct. 1483 (1994).
383. Lindh, 96 F.3d at 861 (citing Landgraf,114 S. Ct. 1483 (1994)).
384. Id.
385. Id.
386. Id.
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Habeas Corpus and the AEDPA
The court found that Congress did not specify which cases the
AEDPA applies to, because chapter 153 lacked an effective date
provision.8 7 However, the petitioner in Lindh argued that Congress
specified by negative implication that chapter 153, which encompasses sections 2244 to 2255, should not apply retroactively. 8 Sections 2244 to 2255 of the Act were silent as to the effective date of
application, in contrast to the clear statement of congressional intent
reflected in sections 2261-2266, encompassed in chapter 154. In
chapter 154, Congress stated that it applied to all pending cases on
or after the date the President signed the Act.3 89 By reading the two
chapters of the AEDPA in pari materia, Lindh contended that if
Congress intended chapter 153 to apply to pending cases, it would
have included this language in the Act. 390
Moreover, Lindh argued that under Landgrafthere was a presumption against retroactivity."' In Landgraf,the Court held that
the 1991 Civil Rights Act was not retroactive, because Congress was
silent on the issue.392 Justice Stevens noted that the "presumption
against statutory retroactivity" was founded upon "sound considerations of general policy and practice, and according with long held
and widely
shared expectations about the usual operation of legisla39, 3
tion.
39'
Judge Easterbrook disagreed with the analysis of Landgraf.
In his view, chapters 153 and 154 were drafted by different houses
of Congress and at different times; therefore, no negative implication could be drawn from the failure of Congress to specify when one
chapter would be effective, even though it stated that the other
chapter would be applicable to all pending cases upon enactment.395
Easterbrook reasoned that in situations where a statute is silent on
the issue of retroactivity, it is just as likely that Congress intended
the courts to resolve the issue, since Congress did not agree on the
effective date of application.39 In any event, the court's view was
that if Congress did not specify an effective date, the courts must
apply the law in force at the time the case was to be decided; thus,
the Seventh Circuit held that the AEDPA applied to Lindh's case.397
Justice Easterbrook admitted, however, that if a statute attached new legal consequences to events completed before its en-
387.
388.
389.
390.
391.
392.
393.
394.
395.
Id. at 862.
Id.
Lindh, 96 F.3d at 861 (citing § 107, 110 Stat. at 1226).
Id. at 862.
Id.
Landgraf,114 S. Ct. at 1506.
Id. at 1508.
Lindh, 96 F.3d at 862.
Id.
396. Id. at 861.
397. Id. at 862.
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[30:337
actment, then it could not be retroactive.398 Under Landgraf, not
every change in outcome constitutes a new legal consequence."' It
matters "whether the party adversely affected by the change has legitimate reliance interests in the operation of the former law." °°
The court stated that the AEDPA may be applied to a case where
the crime occurred before 1996.01 In addition, the court noted that
the AEDPA does not "change any of the rules defining or penalizing
crime" therefore, he concluded that the Act does not attach a new
legal consequence to Lindh's actions in 1988.' 02
Moreover, a prisoner can have no legitimate expectation about
the scope of collateral review."0 3 Citing Lockhart v. Fretwell,"0 the
court noted that the petitioner there called his lawyer ineffective for
failing to take advantage of an appellate opinion that was overruled
after the prisoner commenced his collateral attack.4 1 5 Although his
lawyer failed to cite the opinion at a time when it would have helped
the petitioner, the court affirmed the denial of habeas relief.'M° Based
on that holding, the court concluded that there were no new legal
consequences to events completed before the AEDPA's enactment in
Lindh's case, since Lindh unjustifiably relied on the former habeas
statute.0 7
The court conceded that a petitioner may rely on the former
statute with respect to the time in which to file a habeas corpus petition, since prior to the AEDPA there was no time limit."M° The
court stated that "a prisoner's decision to defer filing-perhaps while
doing legal research ...is the sort of event to which the amended
statute would attach new legal consequences."'
In order to overcome that problem, the Seventh Circuit held that "no collateral attack filed by April 23, 1997, may be dismissed" under the AEDPA." 5
The court concluded, however, that in Lindh the Act attached no
new legal consequences to events completed before its enactment,
and therefore, applied the AEDPA in deciding Lindh's case."
In an unpublished 1996 memo regarding the Seventh Circuit's
decision in Lindh, numerous scholars, including Blume, Kendall,
Olive and Yackle, suggested that its holding regarding the retroac398. Id. at 863.
399. Id. at 861.
400. Id.
401. Id. at 863.
402. Id. at 864.
403.
404.
405.
406.
407.
408.
409.
410.
411.
Id. at 864-65.
506 U.S. 364 (1993).
Lindh, 96 F.3d at 864 (citing Lockhart, 506 U.S. at 367).
Id.
Id. at 866.
Id. at 866-67.
Id. at 866.
Id.
Id.
1997]
Habeas Corpus and the AEDPA
tivity of chapter 153 was at odds with the decisions of other federal
circuits, and pointed out that a writ of certiorari had been filed on
this issue. '
Thereafter, on December 20, 1996, in Jeffries v.
Wood,"" the Ninth Circuit ruled that the AEDPA did not apply retroactively to cases filed prior to April 24, 1996. Then, on January
10, 1997, the Supreme Court granted certiorari to Lindh on the
question of retroactivity.'14 Nevertheless, until the United States
Supreme Court rules to the contrary, the law in the Seventh Circuit
is clear: the AEDPA is applicable today to every pending case in the
federal courts."5 It should also be noted that although the Seventh
Circuit held that the AEDPA is applicable to pending cases, this
holding does not alter the effect of the procedural steps taken before
its enactment. 6
1. Waiver of Retroactivity of Statute
The Seventh Circuit heard the appeal in Emerson v. Gramley"7
one day before President Clinton signed the AEDPA into law. Three
months elapsed before the Seventh Circuit issued its opinion. During that period, the State failed to request re-argument under the
AEDPA, or brief the court with respect to any changes arising under
the AEDPA that would impact the issues or decision in Emerson.
The Seventh Circuit stated that the AEDPA "affects the scope of
federal judicial review of state court determinations, rather than the
8 Therefore, the court held that the issue of retropower of review."
. 411
activity waived.
In that case, Emerson and his brother stabbed and robbed Robert Ray and his girlfriend Delinda Byrd.'20 Ray survived and testified against the Emerson brothers.'21 The court convicted Emerson
and sentenced him to death."2 The Illinois Supreme Court granted
a new trial, and Emerson was again convicted and sentenced to
412. Memorandum from John Blume et al., En Banc Seventh Circuit Decision in Lindh v. Murphy to Habeas Colleagues 2 (Sept. 20, 1996) (on file with
authors).
413. 103 F.3d 827 (9th Cir. 1996).
414. Lindh v. Murphy, 117 S. Ct. 726 (1997).
415. See, e.g., United States ex rel. Coulter v. Gramley, 945 F. Supp. 1138,
1141 n.1 (N.D. IlM. 1996) (stating that the provisions of the AEDPA "apply even
though Coulter was convicted and filed his habeas petition before the provision's enactment"); accordBocain v. Godinez, 101 F.3d 465, 471 (7th Cir. 1996)
(unequivocally stating that "the 1996 Act may be applied when the crime or
state court decision preceded April 24, 1996").
416. See Lindh, 96 F.3d at 863; Green v. Scott, 96 F.3d 1010 (7th Cir. 1996).
417. 91 F.3d 898 (1996).
418. Id. at 900.
419. Id.
420. Id.
421. Id.
422. Id.
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[30:337
death.4 23 Thereafter, Emerson appealed his second conviction and
sentence, but was unsuccessful.' 2' His request for post-conviction
relief was equally unsuccessful.'25 Subsequently, Emerson filed a
petition for habeas corpus relief alleging that his trial lawyer at the
second trial was incompetent during both the trial and the sentencing phases. 2'
The district court agreed that Emerson was afforded
ineffective4 2 assistance of counsel at the sentencing, and both sides
appealed.
1
On appeal, Emerson argued that his trial counsel did nothing to
investigate possible mitigating circumstances and presented absolutely no mitigating evidence.4
28
The Seventh Circuit first noted that
although Emerson had asked his counsel not to pursue mitigation,
Illinois law mandated that if no mitigating circumstances were introduced to rebut the prosecution's aggravating evidence, the jury
must impose a sentence of death.i Judge Posner, writing the opinion for the court, then found no evidence that trial counsel properly
advised Emerson of the consequences of presenting no mitigation
under Illinois law, or that it was a strategic decision. 30 Thus, the
court determined that the level of representation provided at sentencing fell "below the minimum level of competent representation." Moreover, the court found that if the trial counsel presented
some evidence in mitigation, Emerson may well have been spared
the death penalty. 2 For those reasons, the court concluded that
Emerson did not receive effective assistance of counsel at sentencing. ' 3 Therefore, the court vacated the death sentence and ordered
a new sentencing hearing.'2
CONCLUSION
The advent of the Antiterrorism-Terrorism and Effective Death
Penalty Act of 1996 has shifted the balance of power between the
federal government and the states with respect to the administra-
423. Id.
424. Id.
425. Id.
426. Id.
427. Id.
428. Id. at 906.
429. Id. at 905-06.
430. Id. at 906.
431. Id.
432. Id.
433. Id. at 907.
434. The State has since filed a petition for certiorari in the United State
Supreme Court, arguing that the question of whether Emerson's habeas petition should be reviewed under the prior Habeas Corpus Act or under the new
AEDPA, was not waivable by the State. Emerson v. Gramley, 91 F.3d 898 (7th
Cir.), petition for cert. filed, 65 U.S.L.W. 3489 (U.S. Dec. 18, 1996) (No-961043).
19971
Habeas Corpus and the AEDPA
tion of our criminal justice system dramatically in favor of the
states. The AEDPA sounds a retreat from the grand principles of
the Warren Court that so effectively used the writ of habeas corpus
as its enforcement arm for the provisions of the Bill of Rights, which
it incorporated through the Fourteenth Amendment. During the
Warren Court era, the federal government guaranteed the rights of
minors, sex offenders, indigent felons without counsel, and protected
the rights of prisoners in state as well as federal prisons.
In all these endeavors, the power of the federal court to insure
that the states, police, courts, and prisons all complied with the federal constitution was strengthened through the mechanism of the
"Great Writ." The Burger and Rehnquist Courts retreated somewhat from this strong federal presence in the administration and enforcement of our criminal laws and procedures; however, the
AEDPA goes far beyond the decisions of the Burger and Rehnquist
Courts in shifting the balance of power to the states in the administration of their criminal justice systems. Implicated by the passage
of the AEDPA are notions of comity, finality, and economy of judicial
resources as opposed to notions of justice, due process, and equal
protection of the laws for all.
Hardest hit by this Act will be the prisoners under sentence of
death in our state and federal prisons. For them, accelerated filing
procedures, restrictions on filing more than one writ, even if new
evidence is discovered, and deference to state court findings of fact
and law even without full and fair evidentiary proceedings present
obstacles to obtaining justice in their cases. In a report prepared by
the Death Penalty Information Center, it was estimated that over
sixty-six persons who were sentenced to death have been released
from death row because significant evidence of their innocence was
discovered.435 The habeas corpus procedures mandated by the
AEDPA may not effectively prevent future miscarriages of justice,
which is why the American Bar Association has recently proposed a
moratorium on the imposition of the death penalty in America.
The tension between a strong central government and states'
rights began with our founding fathers in the constitutional convention of 1787. It found expression in the papers and pamphlets of the
Federalists and the Anti-Federalists. That same battle is raging today with the AEDPA, which restricts the power of the central government and its federal courts in its habeas jurisdiction, tilting the
scale back to the states. The AEDPA presents both a challenge and
an opportunity to the several states of our land. Hopefully, they will
use this new found power wisely and fairly to protect the rights of all
Americans.
435. DEATH PENALTY INFORMATION CENTER, INNOCENCE AND THE DEATH
PENALTY (1993) (updated 1996).